■ 99 IN RE CLAIM OF HARVEY M. DICKSON, WILLIAM 



v' :i 



Tr4IAS0iN, THE DICKSON - MASON LUMBER 

COMPANY, AND D. L. BOYD, AGAINST 

THE UNITED STATES 



EVIDENCE BEFORE SDBCOMMITTEE NO. O, OF THE COMMITTEE ON 
CLAIMS, OF THE HOUSE OF REPRESENTATIVES 

ON HOUSE BILL 10749 

SIXTIETH CONGRESS, FIRST SESSION 

FOR THE RELIEF OF H. M. DICKSON, WILLIAM 

T. MASON, THE DICKSON-MASON LUMBER 

COMPANY, AND D. L. BOYD 



February 28 and 29, 1908 



MEMORIAL OF THE CLAIMANTS, ,S3>ATEMENT RELATING TO 

THE HISTORY OF THE NORTH CAROLINA CHEROKEES, 
f EVIDENCE AND AFFIDAVITS OF WITNESSES 

AND CLAIMANTS, WITH EXHIBITS 



Subcommittee No. 6: Messrs. KITCHIN, FULTON, and MILLER 



WASHIN(iTON 

GOVERNMENT PRINTING COf'FICE 

19 8 



'] C J u I 



Qass 
Book 




^^LtLht 



IN RE CLAIM OF HARVEY M. DICKSON, WILLIAM 
T. MASON, THE DICKSON MASON LUMBER ^ 
COMPANY, AND D. L. BOYD, AGAINST ^f^jx^ 
THE UNITED STATES 



EVIDENCE BEFORE SUBCOMMITTEE NO. (I, OF THE COMMITTEE ON 
CLAIMS, OF THE HOUSE OF REPRESENTATIVES 

ON HOUSE BILL 10749 

SIXTIETH CONGRESS, FIRST SESSION 

FOR THE RELIEF OF H. M. DICKSON, WILLIAM 

T. MASON, THE DICKSON-MASON LUMBER 

COMPANY, AND D. L. BOYD 



February 28 and 29, 1908 



MEMORIAL OF THE CLAIMANTS, STATEMENT RELATING TO 

THE HISTORY OF THE NORTH CAROLINA CHEROKEES, 

EVIDENCE AND AFFIDAVITS OF WITNESSES 

AND CLAIMANTS, WITH EXHIBITS, 



Subcommittee No. 6: Messrs. KITCHIN, FULTON, and MILLER 



WASHINGTON 
GOVERNMENT PRINTING OFFICE 

1 !> 8 






MEMBERS OF COMMITTEE ON CLAIMS. 

JAMES M. MILLER, Kansas, Chairman. 
CHARLES Q. TIRRELL, Massachusetts. HENRY M. GOLDFOGLE, New York 

JOSEPH HOWELL, Utah. CLAUDE KITCHIN, North Carolina. 

WILLIAM n. GRAHAM, Pennsylvania. EZEKIEL S. CANDLER, Jr., Mississippi. 

GEORGE E. WALDO, New York. DORSEY W. SHACKLEFORD, Missouri. 

GRANT E. MOUSER, Ohio. JAMES O. PATTERSON, South Carolina. 

GEORGE L. LILLEY, Connecticut. JOHN A. M. ADAIR, Indiana. 

CHARLES A. LINDBERGH, Minnesota. ELMER L. FULTON, Oklahoma. 

WILLIS C. HAWLEY, Oregon. ^ 

A. P. MYERS, Clerk. 

2 



D. Ot 0* 

MAR 27 308 



ft> 



[H. R. 10749, Sixtieth Congress, first session.] 

A BILL For the relierof H. M. Dickson, WiUiam T. Mason, the Dickson-Mason Lumber Company, 

and D. L. Boyd. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That the Secretary of the Treasury of the United States of 
America be, and he is hereby, directed to pay, out of any money in the Treasury not 
otherwise appropriated, the sum of twenty-seven thousand eight hundred and seventy- 
three dollars and fifty-five cents to H. M. Dickson, William T. Mason, and the Dick- 
son-Mason Lumber Company, in satisfaction for claim against the United States for 
damages sustained on account of a certain injunction suit brought against said H. M. 
Dickson, William T. Mason, and Dickson-Mason Lumber Company, and D. L. Boyd 
by the L^nited States in the LTnited States circuit court at Asheville, North Carolina. 



DICKSON-MASON LUMBER CO. ET AL. VS. THE UNITED STATES. 



The three hearings in this matter were held February 28 and 29, 
1908, before subcommittee No. 6 of the Committee on Claims, House 
of Representatives. 

The Memorial. 

The undersigned, citizens and residents of the State of North Caro- 
lina, respectfidly petition and show unto the Congress of the United 
States as follows: 

^ The Eastern band of Cherokee Indians, a remnant of the Cherokee 
Nation of Indians, have for many years o\^Tied and occupied and do 
now own and occupy large tracts of land in Jackson, Swain, Cherokee, 
and Graham counties, N. C, a considerable portion of wliich consists 
of wild mountain timber lands. 

These Indian lands are known as the "Qualla boundarv," and 
within the Qualla boundary there is a large tract of land belonging to 
the Indians, containing about 30,000 acres, and which is well known 
as the Cathcart tract. 

In September, 1893, your petitioner D. L. Boyd bought the tim- 
ber trees of certain sizes on the Cathcart tract from the Eastern 
band of Cherokee Indians at an agreed price, and the Eastern band 
of Cherokee Indians, purporting to act as a corporation of the State 
of North Carolina by virtue of chapter 211 of the Private Laws of 
1889, attempted to make your petitioner D. L. Boyd a conveyance 
of said timber trees. 

Your petitioner Boyd accepted said conveyance of said corpora- 
tion in good faith and relying absolutely upon its validity, though 
he well knew at the time that it had never received the sanction 
of the Interior Department of the United States nor of the Indian 
Office nor of the President, conveyed or attempted to convey all 
liis interest in said timber trees to his copetitioners, Harvey M. 
Dickson and W. T. Mason, and paid to the Eastern band of Chero- 
kee Indians the sum in cash agreed to be paid and in all other 
respects proceeded to carry out in good faith his contract with said 
Indian band, regarding and treating them as a corporation under 
the laws of the State of North Carohna and individually and col- 
lectively as citizens of said State and fully competent and quali- 
fied to make contracts with respect to their propertv to the same 
extent as other citizens. Your petitioner Bovd was advised by 
counsel learned in the law that the individual members of this 
band of Indians were citizens of the State and not tribal Indians 
over whom the United States Government had jurisdiction and con- 



6 RELIEF OF H. M. DICKSON ET AL. 

trol. Acting in good faith on the hke advice and belief, your peti- 
tioners Dickson and Mason bought said timber trees of petitioner 
Boyd and proceeded to pay large sums of money on account of the 
purchase price and in other respects to carry out the terms of the 
Boyd contract and conveyance, subject to wliich they had bought. 
Your petitioners Dickson and Mason bought said timber trees for 
the bona fide purpose of entering upon the lands and felling the tim- 
ber trees and manufacturing same into lumber for the markets of the 
world. Your petitioners were advised that the United States Gov- 
ernment held certain funds belonging to the Eastern band of Chero- 
kee Indians and maintained a school for the benefit of the Indians 
at a place called Yellow Hill in the Qualla boundary; that the super- 
intendent of said school was provided and appointed by the I'mted 
States Government; and that because of this interest on the part of 
the Government there was some hkelihood of interference on its part 
in case your petitioners entered upon said lands for the purpose of 
removing the timber above described. Not wishing to incur the 
displeasure of the United States Government nor to innate litigation 
with it, your petitioners, though advised that the members of the 
Eastern band of Cherokee Indians were citizens of the State of North 
Carolina and fully competent to make contracts with respect to their 
property as other citizens, made an attempt to have the Secretary 
of Interior approve the contract between your petitioner Boyd and 
the Eastern band of Cherokee Indians upon the ground that the 
contract was fair, free from fraud, and to the advantage of the Indians 
as well as to the purchasers, but this attempt was unsuccessful, 
your petitioners verily believe, and allege, on information and belief, 
that said contract would have been approved by the Interior Depart- 
ment at this time had the officials thereof been fully cognizant of 
the facts of the case. Your petitioners believe, however, that said 
officials were misled in the matter by the misrepresentations of 
parties who were at the time interested in the matter adversely to 
your petitioners and who, by reason of a close relation with the 
Interior Department, were more influential with the officials thereof 
than were your petitioners or their friends. 

This adverse action by the Interior Department upon the aj^plica- 
tion of your petitioners for the approval of the Boyd contract raised 
an issue that had to ])e met and settled and for which your petitioners 
do not feel that they were in any wise responsil)le beyond the mere 
fact that they had bought, or had attempted to buy, the tiuiber afore- 
said only after being advised by counsel that the Indians could sell 
same. Thereupon, your petitioners, in order to bring about a speedy 
settlement of the issue thus raised, put a few men into the boundary 
of land containing the timber aforementioned and, in a modest way 
and with a j)rudent regard to the interests of all concerned so that no 
unnecessary damages might be inflicted or sufl'ered l)y any party to 
the controversy, began to fell trees and to cut them into l()gs suitable 
for manufacture into hunber. Your petitioners, with the same pru- 
dent regard to the interests of all concerned, forthwith ac(|uainted the 
agents of the United States Government with their acts and iloings in 
the premises, to the end that the Government might promptly take 
such action as might be deemed proper to protect its own and the 
interests of its so-called wards, the Eastern Cnerokees. 



RELIEF OF H. M. DICKSON ET AL. 7 

This anticipated action was some time thereafter taken by the 
Government and a suit instituted a(2;ainst your petitioners in which 
the Government sought an injunction perpetually restrainin<j; them 
from enterinji; upon tlie bounchiry containin*:; said timber or from in 
any manner interfering with or removing same from said bounchiry. 
Your petitioners were making ready to defend said suit and covdd have 
done so at that time without any great (himage, because tlieir expend- 
itures were then small in anticipation of action on the part of the 
Government; but the Uniteil States district attorney for the western 
district of North Carolina at the next succeeding term of the Ignited 
States circuit court at Asheville. N. C, acting, as your petitioners are 
reliably informed and believe and aver, imder instructions from the 
Department of Justice at Washington, and particularly fr(»m the then 
Attorne3-General of the United States, Hon. Richard Gluey, came 
into court and voluntarily took a nonsuit in saitl cause. The purchase 
of the timber in the Cathcart tract by W. T. Mason and Harvey M. 
Dickson (who afterwards formed the Dickson-Mason Lumi)er Com- 
pany for its development, and to which corporation said Mason and 
Dickson, in turn, subsequently conveyed their interests) was made 
about December 23, 1S93. Practically nothing was done by them 
toward the development of the property until after the latter part of 
November, 1894, when the nonsuit hereinbefore mentioned was 
entered or taken by the United States Government in the said suit 
against these petitioners as hereinbefore described. 

The action of the Government in taking a nonsiut in said cause, as 
above stated, led your petitioners to believe that the Government had 
abandoned its contention that the Eastern Band of Cherokees were 
tribal Indians and incompetent to make contracts with respect to 
their property except by authority of the United States Government. 
This belief became conviction when your petitioners learned of a 
letter dated October 22, 1894, addressed by the Attorney-General of 
the United States to the Secretary of the Interior, in which the 
Attorney-General expressed the opinion that the United States 
Government had no authority to interfere in any way with the 
Cherokee Indians of North Carolina any more th^n with other citi- 
zens of said State, and that it was no part of the duty of the United 
States to maintain the above-mentioned injunction suit against these 
petitioners to restrain them from entering upon and removing timber 
from the Cathcart boundary under the Boyd contract. 

After the entry of said nonsuit and after your petitioners had 
learned of this opinion of the Attorney-General of the Ignited States, 
your petitioners Mason, Dickson, and the Dickson-Mason Lumber 
Company commenced operations upon a large scale for the cutting t)f 
the timber from the Cathcart tract and for the removal and marketing 
of the lumber manufactured therefrom. 

Said petitioners Mason, Dickson, and the Dickson-Mason Lumber 
Company in the course of the development of said property, built 
roads, tramroads, Ixnight tram-car rails, and a large band sawmill of 
20,000 feet capacity ])er day, and otlier machinery; they spent large 
sums of money in felling timber trees, to an anu)unt about 1,500,000 
feet of the very best (juality, and in many other ways said ])etitioners 
last above mentioned spent other large sums of mcmey in pre()arations 
to develop said timber pro])erty upon a large scale; said petitioners 



8 RELIEF OF H. M. DICKSON ET AL. 

all the wliile relying- not upon the strength of their title but also upon 
the purpose of nonintervention on the part of the National Govern- 
ment not only declared in the opinion of the United States Attorney- 
General, but also indicated very clearly in the failure to prosecute the 
suit for an injiuiction against your petitioners and the taking of a 
nonsuit therein, as aforesaid. 

Your petitioners Mason, Dickson, and the Dickson-Mason lAimber 
Company thereafter continued to make their preparations for the 
development of the property and in tliis behalf to expend large sums 
of money as hereinbefore and hereinafter more specifically detailed 
until the" 8th day of March, 1895, when the United States Government 
served another injunction upon them of like purport and effect and 
based upon like grounds as the injuncti<Mi first hereinbefore mentioned. 

This injunction at once stopped all the operations of the Dickson- 
Mason Lumber Company, to which corporation Mason and Dickson 
had at that time conveyed all their interest and property in said 
Cathcart timber. The bill upon which said last injunction was 
issued contained allegations of fraud and unfair dealing with the 
Eastern band of Cherokees on the part of your petitioners, it being 
charged that the Indians through their ignorance and want of business 
knowledge were overreached in said transaction. It was also 
charged in said bill that the Boyd contract for said timber was 
''most unjust and iniquitous itself, and doubly so in respect to the 
ignorance of the comicil" (meaning Indian council) "and the influ- 
ence of their advisers." 

Your petitioners in due course of time fully answered the bill of 
the United States praying for the injunction as above set forth, and in 
due course the cause came on for hearing before the judge of the 
United States circuit court at Asheville, N. C. The answers of your 
petitioners denied all charges of fraud, and contended that the Indians 
of the Eastern band of Cherokee Indians were citizens of the State of 
North Carolina, and in no sense tribal Indians und^r the control and 
care of the United States Government. And thereupon your peti- 
tioners moved to dismiss the bill, for that it appeared upon its face 
that the controversy was one between citizens of the State of North 
Carolina and over which the Federal courts had no jurisdiction. 

The decision of the circuit court was adverse to your petitioners 
upon the question of jurisdiction, Judge Simonton holding that the 
Cherokee Indians had never been naturalized or admitted into citizen- 
ship of the United States, although they had ceased to be tribal In- 
dians. Says Judge Simonton in his opinion : 

But the Indians (North Carolina Cherokees) held these lands to no such purpose. 
Their realty can be alienated, but the contract is reviewable by the Government for 
one purpose only — to protect them from fraud or wrong. 

Judge Simonton in a supplemental decree said in this connection: 

But this conclusion docs not dispose of th(> case. The United States having come 
into this jurisdiclion and having invoked the aid of the court, stands as any other 
suitor, and the defendants who have been impleaded by the United States have the 
same riglits to have their defenses examined as they would liave in the case of any 
other suitor. The answers and defenses set up to the bill of the United States raise 
issues of fact important to the defendants and to the piiblic. These facts should be 
investigated and tlieir truth or falsity establislied. 

Accordingly the judge proceeded to investigate the issue of fraud 
that had been raised in the pleadings through the then standing 



RELIEF OF H. M. DICKSON ET AL. 9 

master in equity, Hon. K. M. Douglas, now on the supreme court 
of North Carohna. His report in full upon this point was as follows: 

Report of Standing Master. 

In the circuit court of the United Stales for the western district of North Carolina, 
at Asheville. fourth circuit. In equity. 

The United States of America et al. r. D. L. Boyd et al., Defendants. 

REPORT OF standing MASTER. 

To the honorable the judges of the (irci(it court: 

The undersigned, standing master in chancery, respectfully reports: 

That this cause having been referred to me by a decretal order filed on the 14th 
day of August, 1895, I proceeded, after due notice and upon agreement of parties, 
to execute the said reference at Waynesville, N. C, on the 17tli day of September, 
1895, when and where all parties were present or represented by counsel. The agreed 
facts and testimony then and there taken down by me are herewith filed. From 
said facts and testimony I find as facts: 

First. That the sum of |15,000 is and was a fair and adequate price for the timber 
on the Cathcart tract belonging to the Indians and described in the deed of the East- 
ern band of Cherokee Indians to the defendant D. L. Boyd. 

Second. That there was no' fraud or unfair dealing in the making of said contract 
between the said Indians and the said Boyd. 

It appears in evidence that "By pre\ious contract with the Eastern Band of Cher- 
okee Indians, H. G. Ewart was to receive 20 per cent of the amount realized from 
the timber, and that he recover(>d judgment in the superior court of Henderson County, 
N. C, for $.3,000; that Ewarts' contract was made October. 1891, and Boyd's 
contract with Indians September 28, 1893, and that the sum of $1,000 has been paid 
by the Indians out of the funds received from Mason and Dickson on the Ewart j udg- 
ment." It does not appear what services, if any, were rendered by the said Ewart 
in consideration of receiving the 20 per cent, or that there was any other considera- 
tion for the said contract between him and the said Indians. As the said Ewart is 
not a party to this suit, and the validity of this claim is apparently not here called 
in*question, I do not deem it proper to report upon its validity; but as a copy of the 
judgment rendered in his favor has been filed with me, I would respectfully call 
it to the attention of the court. Being in the nature of a •"judgment quando,'' and 
not of immediate operation, it appears to be void. 

Respectfully suTjinitted this 11th day of November, 1895. * 

Ro. M. Douglas, 
Standing Master in Chancery. 

Upon the coming in of the foregoing report of the standing master, 
the same was confirmed and the injunction theretofore issued against 
your petitioners was dissolved and a decree entered permitting the 
parties to the Boyd contract to carry same out pursuant to the 
terms thereof. Said decree is as follows: 

The United States of America, western district of North Carolina, fourth circuit. 

In equity. 

The UiXiTED States et al v. D. T. Boyd et al. 

This case now comes up upon the report of the standing master in chancery, who 
was instructed by an order of 14th August, 1895, to " inqure into all the facts connected 
with the contract in issue and the circumstances under which it was made; the ade- 
quacy of the consideration thereof, the existence of any fraud or unfair dealing therein, 
and into any other facts peilaining to the issues involved, concerning wliich any 
party to this cause may ot'fer testimony, and that he report tlie .<ame with all con- 
venient speed to this court." The facts as developed in the testimony, reported by 
the master, show that the sum of .$15,000, contracted to be paid to the Indians for 
the timber, was a fair and ade((uatc ])rice for it: that there was no fraud or unfair 
dealing in the making of tli<> .«ai(l contract lietwecii tlie said Indians and Boyd, tlie 
defendant. 



10 RELIEF OF H. M. DICKSON ET AL. 

Healing tlit' testimony and the argument of counsel thereon, and upon ilue con- 
sideration thereof, it is ordered, adjudged, and (h-creed that the injunction and 
restraining oider heretofore made in this cause he dissolved, and that the parties to 
the contract have leave to carry out the same pursuant to the terms thereof. 

It having heen stated in open court that George H. Smathers, esq., present thereat, 
is the custodian of funds received and to l^e received under the contract aforesaid 
from the purchasers thereunder, it is ordered that he be, and is hereby, appointed 
receiver in that behalf, subject to the orders of this court. That he do, within ten 
days from the date hereof, enter into bond, with sureties, to be approved by a com- 
missioner of this court, in the sum of $20,000 for the faithful performance of his trust. 
That he invest the funds in his hands, or coming into his hands, from time to time in 
public securities or in first-mortgage bonds, secured Ijy real estate otherwise unin- 
cumbered, the sum loaned not to exceed one-half the actual value of such real estate, 
interest at 6 per cent per annum, payable annually or semiannually. That beyond 
this he make no disposition of any funds in his hands, except under further order of 
this court. 

The master ha\ing lirought to the attention of the court that Hon. H. (1. Ewart 
has a claim on these funds, leave is herel)y given to the said H. G. Ewart to intervene 
in this suit as he may be advised. 

Ch.\rles H. Simonton, Cirniit Jxdge. 

February 11, 189(5. 

The Governiiieiit appealed from so much of this decree as held that 
the court had the power to permit the parties to carry out the con- 
tract according to its terms, the contention of the Government being 
that the contract was wholly void on the ground that these Indians 
were tribal Indians and embraced within the terms of the Congres- 
sional enactments for the protection of tribal Indians. This conten- 
tion of the Government was sustained on appeal, the United States 
circuit court of appeals at Richmond holding that the North Carolina 
Cherokees were tribal Indians and incompetent to contract without 
the consent of the Government. 

The opinion of the court in this case can be found in United States 
V. Boyd et al. (83 Fed. Rep., 547 et seq.). * 

Attention is specially called to the fact that in this case no refer- 
ence is made by the court to the decision of the United States Supreme 
Court in the case of Eastern band of Cherokee Indians v. United 
States and Cherokee Nation (117 U. S. R., 288; 29 L. Ed., 880) 
where the whole subject of the North Carolina Cherokees and their 
status is discussed and where on page 309, the court sa3's: 

The Cherokees in North Carolina dissolved their connection with their nation when 
they refused to accompany the body of it on its removal, and they have had no political 
organization since. \\ hatever union they ha\-e had among themselves has been 
merely a social or business one. It was formed in 1868 at the suggestion of an officer 
of the Indian Office, for the purpose of enabling them to transact business with the 
Government with greater convenience. Although its articles are drawn in the form 
of a constitution for a separate civil government, they have never been recognized by 
the United States; no tr(>aty has been made with them; they can pass no laws; they 
are citizens of that State and bound by its laws. 

The case from which this quotation is made was the one mainly 
relied U|>()n in the circuit court of appeals by your petitioners who 
w^ere contending that the North Carohna Cherokees were citizens of 
North Carolina and it is strange, to say the least, that the court did 
not even refer to it in their opinion. 

An appeal from this decision of the circuit court of appeals to the 
United States Supreme Court was duly taken in apt time by your 
petitioners, but shortly thereafter the Interior Department of the 
United States reinvestigated the contract and the circumstances 
under which it was iiuide and confirmed said contract. 



RELIEF OF H. M. DICKSON ET AL. 11 

There had been a change of athninistration and the hostile and 
interested influences in the De})artnient of the Interior which, as 
hereinbefore set out, had acconij)lislie(l the defeat of every effort by 
your petitioners to have the Boyd contract confirmed, were removed. 

In partial proof of the facts hereinbefore set forth and in partial 
confirmation of the allegations of your petitioners herein, a copy of 
the transcript of the record on appeal in the case of "United States 
V. Boyd et al." is herewith submitted, attached hereto, and respect- 
fully asked to be taken as part of this memorial. The other facts and 
allegations not supported by this record, because not covered thereby, 
your petitioners are ready, willing, able, and anxious to verify when- 
ever they may be given an opportunity so to do by the Congress. 
Your petitioners also send herewith a brief of one of the solicitors 
representing your petitioners when Boyd's case was argued in the cir- 
cuit court of appeals in verification and support of the allegation that 
the case of the Eastern Band v. United States et al., decided by the 
Supreme Court of the United States as above stated was mainly relied 
on by your petitioners, and the opinion of the court in the case of 
United States i\ Boyd, supra, is cited to sustain the allegation that 
the court of appeals did not even refer to this decision of the Ignited 
States Supreme Court. 

By reason of the action of the United States Government in suing 
out and prosecuting the injunction against your petitioners, your 
petitioners have been greatly damaged, as hereinafter itemized and 
set forth, separately, and your petitioners pray the Congress of the 
United States to reimburse them for the damages so sustained, and 
respectfidly ask to be allowed to introduce further evidence of the 
facts alleged by them, if in the opinion of the Congress further evi- 
dence thereof is necessary. 

ARGUMENT. 

Your ])etitioners respectfully contend that they are entitled to the 
relief herein prayed for in any as})ect of the case, that is to say: 

1. If the North Carolina Cherokees are citizens of that State and 
of the United States, as your petitioners claim, then the court which 
issued the injunction in the suit against your petitioners was witliout 
jurisdiction and every consideration of justice, right, and fair deahng 
would require a great and powerful sovereign to repair the damage 
done to the fullest extent. This proposition your petitioners regard 
as so self-evident as not to require any argument in its support. 

2. But if the North Carolina Cherokees are regarded by your 
honorable body as tribal Indians and wards of the United States your 
petitioners respectfully contend that they are still entitled to the 
relief sought herein for the following reasons: 

■ It is considered that the sole object of the statutes of the United 
States regulating intercourse between citizens of the Ignited States 
and tribal Indians within the jurisdiction of the United States is to 
protect the Indians agginst fraud, oppression, undue influence, or 
unfair dealing on the part of those who are more intelligent and more 
alert to their own interests. Of course, different considerations 
govern the relations existing between foreigners and tribal Indians 
and the spirit of the hiws applicable to such cases is entirely diHerent. 
The spirit of the United States statutes in the case of dealings between 



12 RELIEF OF H. M. DICKSON ET AL. 

citizens of the United States and tribal Indians does not forbid that 
class of contracts which are to the advantage of the Indians and pro- 
mote their well-being. Such a construction would shock the sense 
of justice of any guardian and, if carried to its logical conclusion, 
w^ould absolutely undermine all the law controlling the relation of 
guardian and ward. In this last class of cases falls the Boyd con- 
tract, on account of which your petitioners have been heavily damaged. 

The standing master in equity of the United States court in which 
the Boyd case was tried, after investigation, so found; this finding 
was made with the consent of the United States district attorney 
who prosecuted the suit for the Government and was approved by 
Judge Charles H. Simonton, of the United States circuit court, who 
tried the case below. The Interior Department of the United States, 
after a full and fair investigation, has so decided and has approved 
the contract. There is no responsible or disinterested person who 
impugns the transaction, and every dollar due the Eastern Cherokees 
under the Boyd contract has been paid to them. The great body of 
the Indians themselves, appreciating the advantages of the contract 
to them, joined witli your petitioners in the ensuing litigation and 
fought side by side with them and against the United States Govern- 
ment, their so-called guardian, through the circuit court of ajypeals, 
and even joined in the appeal to the United States Supreme Court. 
These Indians have accepted all the advantages of the Boyd con- 
tract. It is impossible for your petitioners to be put on an equality 
in this respect with said Indians unless and until all damages inflicted 
by the action of the United States Government in the Boyd suit has 
been paid to your petitioners. 

These damages sufi'ered by each interest herein represented are 
itemized and set forth separately on two sheets hereto attached and 
asked to be considered as a portion of this memorial. 

And your petitioners as in duty bound will ever pray, etc. 
D. L. Boyd. 
Harvey M. Dickson. 
W. T. Mason. 

The Dickson-Mason Lumber Company, 
By Harvey M. Dickson, [seal] 

President. 

The damages of Harvey M. Dickson, W. T. Mason, and the Dickson- 
Mason Lumber Company mentioned in the attached memorial are 
itemized as follows: 

Interest on purchase price |25,000 for about foiir and one-half years or until 
date of confirmation of contract by Government, less $1,200 rebate allowed 

by Indians $5, 738. 00 

Expense two trips to look after work, etc., at Soco, spring, 1894. 120. 00 

February 23, 1895, paid D. L. Boyd making roads. . . . , 200. 00 

Expenses of H. M. D. to Asheville and Soco from Mattoon and rettn-n 110. 87 

W. T. Mason's two trips to Washington, one in .hme and one in July, 1894. 100. 00 

Two trips in Soptomber, 1894. from Mattoon and return 120. 00 

Lo.ssof II. M. I). 'slime from Marcli 1 until the organization, January 15, 1895. 1, 750. 00 

W. T. Mason's lost time during the year 1894 " 833. 35 

Interest on railroad o(|uii)iu('nt .'!!2,(i50 lor nine months 119. 25 

Paid Indians on lease of ground CO. 00 

Interest on cost of impro\ ements. timber, elc, 148,000 feet at .'j!(). three 

years $888 159. 84 

Interest on numev paid for improvements previous to tlio injunction, 

.*l.50(), ilncc iiiu'l onc-luilf voars 315. 00 



RELIEF OF H. M. DICKSON ET AL. 13 

Money paid handy employed in March, April, May, and June, 1895 |121. 02 

Eight months feed of horse, at $10 per month 80. 00 

Damage to logs, 1 ,500 feet " approximate, ' ' on account of not being sawed . . 4, 500. 00 
Loss to the company for January 15, 1895, to September 15, 1895, salaries for 

eight months ". 2, 666. 66 

Loss of expense making first attempt at work which led to first injunction, 

cutting export logs 1 50. 00 

J. N. Capps'i loss, actual cash paid as damages 1 , 491. 00 

Literest on Capps's loss 178. 81 

Expense of H. M. D."s to Cincinnati to change mills 50. 00 

Interest for three years three months on $50, at 6 per cent 9. 75 

Attorney's fees 1 , 500. 00 

Loss on account of salaries paid, office rent, clerk hire, etc., from January 15, 

1895, until date of confirmation, August, 1898 7, 500. 00 

Total 27, 873. 55 

City of Washington, 

District of Columbia, ss : 

Harvey M. Dickson and W. T. Mason, being first duly sworn, say, each for himself: 

That he has read the foregoing memorial and knows the contents thereof; that the 

same is true of his own knowledge except as to the matters and things therein alleged 

on information and belief, and as to those matters and things he believes it to be true. 

Harvey M. Dickson. 
W. T. Mason. 

Subscribed and sworn to before the undersigned, a notary public of the District of 
Columbia, this the 28th day of February, 1908. 
[seal.] E. C. Owen, 

Notary Public of the District of Columbia. 

STATEMENT OF MR. LOUIS M. BOURNE, RELATING TO THE 
HISTORY OF THE NORTH CAROLINA CHEROKEES. 

Mr. Bourne. Prior to the treaty of New Echota between the 
Cherokee Nation of Indians and the United States in 1835, that 
nation inhabited parts of North Carohna, Georgia, Alabama, and 
Tennessee, and was a constant source and cause of trouble between 
some of these States and the United States Government. This 
friction made the National Government extremely anxious to secure 
their removal to lands west of the Mississippi Kiver. The oppor- 
tunity for doing it was afforded when the treaty of New Echota was 
negotiated. Accordingly, this treaty provided for the removal of 
the entire nation, the only exceptions made being in the cases of 
individual Indians who desired to separate themselves from their 
tribe and become citizens of the States in which they lived, as the 
following quotations will show. Governor William Carroll, of Nash- 
ville, Tenn., and Kev. J. F. Schermerhorn, of Utica, N. Y., were the 
United States commissioners appointed to negotiate the treaty of 
New Echota on the part of the United States. General Jackson 
was President and Hon. Lewis Cass Secretary of War. The fourth 
instruction to the commissioners, issued by the Secretary of War 
under the direction of the President, was in these words: 

The great object being to insure the entire removal of the tribe, no reservations will 
be granted. If individuals are desirous of remaining, they must purchase residences 
for themselves, like white persons, and must be left to the care of the laws of the States 
within which they reside. (S. Ex. Doc. No. 120, p. 102, 2d sess. 25th Cong. ) 

Commissioner Schermerhorn, acting under these instructions. Gov- 
ernor Carroll being absent on accoimt of sickness, proceeded to Run- 
ning Waters Council Ground, and there addressed the Indian council 



14 RELIEF OF H. M. DICKSON ET AL. 

in explanation of each article of the treaty. He ex])hiined the four- 
teenth , article of the original draft (afterwards the twelfth in the 
draft adopted, the address being made on July 25, 1835, and the 
treaty ratified finally by the Cherokee people on December 29 follow- 
ing), as follows: 

Article 14 makes provision for such ( 'herokees as do not wish to remove west of the 
Mississippi, and wish to become citizens of the States where ihey live, and are qualified 
in the opinion of the agent to take care of themselves. They will have paid to them 
here all that is due them for their claims, improvements, ferries, per capita allowance, 
removal, and subsistence: but they must buy their own lands, like other citizens, and 
settle where they please, subjects of the laws of the country where thev live. (S. Doc. 
No. 120, 25th Cong., 2d sess., p. 459.) 

Thus it appears that the President of the United States, the Secre- 
tary of War, and the treaty commissioners on the part of the United 
States all concurred in the view that no Indian shotild remain unless 
he should do so as a citizen, and this explanation was made to the 
Indians in no uncertain terms. The Indians were given two years 
within which to remove imder the terms of this treaty. After its 
ratification by the Senate, steps were taken to insure its execution 
on the part of the Indians. Acting Assistant Commissarv-General of 
Subsistence J. H. Hook, in a letter dated July 28, 1836, to B. F. 
Currey, esq., superintendent of Cherokee removal, uses this language: 

Nine enrolling books will be prepared, in which will be entered the substance of the 
treaty recently formed, and a clause shall then be added signifying the choice of the 
signers as to the time of removing under the treaty or whether they would prefer to 
become citizens. The captain of the enrolling books shall provide that the enr 11- 
ment be a relinquishment of all right to occupancy in and to the country east of the 
Mississippi, and a surrender of all their lights in the .same, to take effect whenever the 
proper agents shall signify their readiness to remove them after the period designated 
by themselves for removal, if prior to the latest period fixed therefor by treaty. At 
the expiration of which period, all who have not removed or registered, and not been 
admitted to citizenship, will be expected to remove. 

It must be stated in this connection that, in spite of all the attempts 
to induce the Cherokees to comply with the portion of their treaty 
that required the removal of all the nation, except those who became 
citizens, only a very few of the Indians had removed at the expiration 
of the time limited therefor. 

As a result, the President became impatient and determined to 
compel them to execute their treat}^ obligations, but not more so than 
the people of the States in which they remained. 

The President therefore sent Gen. Winfield Scott, with a portion 
of the United States Army, to the Cherokee country to effect their 
removal. 

General Scott issued an address to the Indians, explaining the ob- 
ject of his visit, in the course of which he used the following language: 

Cherokees: The Prc-sident of the United States has sent me, with a powerful army, 
to cause you, in obedience^ of the treaty of 1835, to join that part of your people who 
are already established in prosperity on the other side of the Missi.'ssippi. rnhappily, 
the two years which were allowecl for the purj)ose you have suffered to pass away 
without following, and without making any preparaticm to follow, and now, or by 
the time that this solemn address shall reach your distant settlements, the iMuigration 
must be conuucnced in haste, liut, I hope, without disorder. I have no power, by 
granting a further delay, to cornvt the error thai you have committed. The full 
moon of May is already on the wane, and l)eft)re another .'^hall have ])assed away every 
Cherokee man, woman, and child in iho.se Stales must i)e in motion to join their 
bicllucn in llir Far West. 



^% 



BELIEF OF H. M. DICKSON ET AL. 15 



My Friend: Tlii^ is no sudden determination on the part of the President, whom 
you and I must now ol>ov. By llie treaty the emigration wa,-? to have been completed 
on or before the 2:'A of tliis montli. and the President has constantly kept you warned, 
diu'ing the two years allowed, through all his ofhcers and agents in this country, that 
the treaty would be enforced. 

I am come to carry out that determination. My troops already occupy many posi- 
tions that you are to abandon, and thousands and thousands are approaching from 
every quarter to render assistance aifd escape alike hopeless. All those troops, regu- 
lar and militia, are your friends. Receive them and confide in them as such; obey 
them when they tell you that you can remain no longer in this country, etc. (1 Scott's 
Autobiography, pp. 323-324.) 

These transactions, acts, instructions, and addresses, contenii>ora- 
neous with the treaty of 1835 and really part of the res fjesta^ of 
this importarit historical occurrence, shed a Hood of li^li,t ui)on the 
twelfth article, which can not be obscured, thou<i;h it maybe dinuned, 
by the lapse of two generations since their hai){)ening. 

The purpose of the United States Government to withdraw from 
the States mentioned all tribal Indians over whom there might be a 
conflict of jurisdiction had manifested itself in treaties hmg prior to 
the treaty of 1835. The policy of encouragino; the Cherokees to go 
West distinctly appears in the promises of President Jeffers(m to a 
deputation of the tribe who waited on him in 1808, as contained in 
his answer to them dated January 9, 1809. Those who cared to 
remove West were allowed to do so, but those who chose to remain 
were to be unmolested and secured in their rights. The choice of 
going or remaining was left to the Cherokees themselves at this time. 
This freedom of choice was continued in the treaty of July 8, 18l7. 
The treaty of 1819 provided, reserved, and secured certain other rights 
to such as chose to become citizens of the United ^States "in the 
manner stipulated in the treaty," except those enrolled at the time 
for the Arkansas. 

It will be seen from even a casual reading of the treaties that the 
United States always piu'sued a progressive policy of acquisition of 
their lands and citizenation toward the Eastern Cherokees, until 
this policy finally culminated in the treaty of 1835, under which, it 
was doubtless supposed, the last excuse for a conflict of jin-isdiction 
between the States in which the Cherokees lived and the United 
States on account of the presence within those States of tribal Indians, 
over which the United States claimed control, had been eliminated. 

Hon. T. Hartley Crawford, head of the Indian Bureau at that 
time, in a report to the Secretary of War under date of February 22, 
1844, referred to the different classes of Cherokees who had been 
allowed to remain east as "citizens of the State of North Carolina." 
As additional evidence that these Indians have considered them- 
selves citizens and have been so regarded by the State of North 
Carolina, it might be mentioned that they vote, pay taxes, work the 
public roads, and perform all the other duties of citizens, and in 
partial recognition of the right of North Carolina to require the per- 
formance of these duties the Ignited States have often made appro- 
priations of the Cherokee funds, a large portion of which they still 
retain, to discharge the lien of these taxes assessed by the vState 
or to redeem theii- lands when sold for taxes, all of which will appear 
by reference to the history of the protracted North Carolina Cherokee 
litigation as contained in Executive Document No. 196, House of 
Representatives, Forty-seventh Congress, fu'st session, and Executive 



16 RELIEF OF H. M. DICKSON ET AL. 

Document No. 12S, House of Representatives, Fifty-third Congress, 
second session. 

A carefid study of the Congressional Statutes between these periods 
fails to disclose any attempt of the United States between 1838 and 
1868 to assume control of the North Carolina Cherokees or to review 
their contracts. The United States retained a large sum of money 
belonging to the North CaroHna CheroRees under the treaty of New 
Echota hereinbefore mentioned, and the United States withheld this 
money until the civil war. 

The possession of this fund belonging to the North Carolina Cher- 
okees by the United States, the lapse of time, the coming on of the 
civil war, and the participation therein of these Indians on the side 
of the Confederacy as loyal citizens of North Carohna, all tended to 
breed confusion in the minds of those in charge at Washington as to 
their true status. This confusion grew until it culminated in the 
act of Congress of 1868, passed July 27, in which the Secretary of the 
Interior is directed to "cause a new roll or census to be made of the 
North Carolina or Eastern Cherokees, wliich shall be the roll upon 
wliich payments due said Indians shall be made," and to "cause the 
Commissioners of Indian Affairs to take the same supervisor\" charge 
of the Eastern or North Carolina Cherokees as of other tribes of 
Indians." (Act 40th Cong., 2d sess., ch. 259.) 

It may be said of this act of Congress, whatever its purpose, that 
it could not make the North Carolina Cherokees a tribe of Indians 
if the twelfth article of the New Echota treat}' made them citizens; 
certainly not without their consent, and probably not without con- 
sent of North Carolina. 

But this act of Congress has been passed upon b}' the United States 
Supreme Court. In Eastern Band of Cherokee Indians v. United 
States and Cherokee Nation (117 U. S. S. R., 288, afhrming the deci- 
sion of the Court of Claims in the same case, 20 C. CIs., 449), 
reference is made to the effect of the statute of 1868, and in dis- 
cussing the same, and the status of these Indians, the court sa3^s, on 
page 309 : 

The Cherokees in North Carolina dissolved their connection with their nation when 
they refused to accompany the body of it on its removal, and they have had no polit- 
ical organization since. \\'hatever organization they have liad among themselves has 
been merely a social or l)usiness one. It was formed in ]8()8. at the suggestions of an 
officer of the Indian Office, for the purpose of enabling them to transact lousiness 
with the Government with greater convenience. Although its articles are drawn in 
the form of a constitution for a separate civil government, they have never been recog- 
nized as a separate nation by the United States; no treaty has been made with them; 
they can pass no laws; they are citizens of that State and bound by its laws. * * * 

and on page 310: 

Nor is the band, organized as it now is, the successor of any organization recognized 
by any treaty or law of the United States. Individual Indians who refused to remove 
west, and preferred to remain and become citizens of the States in which they resided, 
were promised certain moneys, etc. 

The entire history of the Cherokee Nation and of the Eastern Band 
of Cherokee IncHans, or North Carolina Cherokees, is continued in the 
al)ove-nienti()ned report of the case by the Court of Chiiins. and also 
in the case as re|)orted in the United States Supreme Court !\ej)()its, 
supra, to both of which reports reference is hereby mach^ for fuller 
particulars. 



eeltef of h. m. dickson et al. 17 

The Evidence. 

rroceedings of first session of our committee. 

Subcommittee No. 6, Committee on Claims, 

House of Representatives, 

Friday, Fehmary 28, 1908. 
The subcommittee met this day at 4.45 o'ch)ck p. m., Hon. 
Clamle Kitchin, chairman subcommittee, in the chair. 

There appeared l)ef()re the committee Mr. Harvey M. Dickson, of 
Norfolk, Va., and Mr. W. T. Mason, of AsheviHe, N. C, and their legal 
representative, Mr. L. M. Bourne, of Asheville, N. C, in the claim of 
Harvey ]M. Dickson, W. T. Mason, and the Dickson-Mason Lumber 
Company. 

Mr. Kitchin. Now you may proceed. 

STATEMENT OF MR. L. M. BOURNE, OF ASHEVILLE, N. C, COUNSEL 
OF THE DICKSON-MASON LUMBER COMPANY. 

Mr. Bourne. I want to call attention to an aflidavit submitted by 
W. S. Hyatt, which relates to certain items of damage. He was 
superintendent for claimants. 

The affidavit is as follows : 

W. S. Hyatt, being first duly sworn, says: 

That he was. and is. fully acquainted wnth the purchase of the Cathcart boundary 
of timber by H. M. Dickson and W. T. Mason aliout the 1st of .January, 1894, and of 
the subsequent transfer of the same by said purchasers to the Dickson-^Iason Lumljer 
Company, a corporation organized by themselves: that he began to work for the said 
Mason and Dickson and the Dickson-Mason Lumber Company shortly after the piu'- 
chase of said lands by them, and has continued to work for them and their successors 
in interest ever since; that his duties were those of general manager of tlie cutting of 
the timber, the sawing of the same into lumber, and of the delivery of the liunber 
to the railroad for shipment: that in this way he was thoroughly acquainted with 
the quantity and quality of timber that was cut by Mason and' Dickson and the 
Dickson-Mason Lumlier Com])any after the taking of the nonsuit l)y the United 
States Government at the regular term of the Federal court in Noveml)er, 1894, at 
Asheville, and before the institution of the new suit and the serving of the injunc- 
tion on March 8, 1895: that this affiant knows that the said Dickson and Ma.son and 
the Dickson-Mason Lumber Company from the time of their purchase until the 
United States Government submitted to a judgment of nonsuit at the Novembei 
term, 1894, were very prudent and economical in their outlays of money, because 
they did not wish to waste any money or to risk any considerable expenditure after 
the beginning of the first injunction suit by the Government until their title to said 
boundary of timber should be finally settled. That this affiant knows that said 
Dickson and Mason, and the Dickson-Mason Lumber Com])any regartled the volun- 
tary action of the representatives of the Government in coming into court and sub- 
mitting to a judgment of nonsuit as tantamount to a settlement of the question of 
title in their favor, and that they at once began the expenditure of large sums of 
money and the development of said property upon a huge scale, in fact, upon a 
scale never before attempted in the de\elopment of timber properties in western 
North Carolina, so far as this affiant's knowledge or information extends, felling tim- 
ber trees, preparing to build trannoads, buying tram cars, engine, and steel rails, 
and shipping of said engine, steel rails, and other supplies to the nearest railroad 
station to said Cathcart tract of timber: that affiant knows that said parties entered 
into a contract with one J. M. Capps. who was to install a l)and sivwmill of a daily 
capacity of not less than 20.000 feet of lumber: and that said Capps. in accordance 
with the terms of said contract, actually purchased said mill, and that said parties 
rented land from the Indians and built houses thereon for their tenants and work- 
men, and made other contracts for sawing in addition to the contract with said J. N. 
Capps. 

34540—08 2 



18 RELIEF OF H. M. DICKSON ET AL. 

That affiant knows that after said nonsuit was entered at Xovemher term. 1894, of the 
Federal court, at Asheville. N. C, and- after these large expenditures on the part of 
Dickson and Mason, and the Dickson -Mason Lumber Company, to wit, on tlie 8th day 
of March, 1895, tliat the representatives of the United States Government renewed their 
action for injunction against said parties; that said injunction was actually issued in 
said action and served upon said parties, and that all their operations were suspended 
from and after said 8th day of March, 1895; that affiant further knows that by reason of 
said injunction most of the expenditures hereinbefore detailed were wasted and proved 
of no benefit or advantage to said parties, or to any of them; that the timber trees that 
had been felled prior to the service of said last-mentioned injunction were permitted 
to lie exposed to the summer sun and were greatly damaged thereliy; that affiant 
knows that said timber trees, instead of containing 1,500,000 feet of lumber, as set forth 
in the memorial address to the Congress of the United States by said Dickson and 
Mason and the Dickson-Mason Lumber Company, afterward actually sawed out over 
2,000,000 feet of lumber, all of which proved to be badly damaged: that in addition to 
this item of damage, affiant knows that these trees were largely poplar trees among the 
very best on the Cathcart tract and the most accessible; that in addition to this item of 
damage, affiant knows that all of the hickory, buckeye, and lynn that had ])een felled 
prior to the service of said last-mentioned injunction had to be left in the woods and 
proved a total loss and that all of this was due to the action of the Government in sus- 
pending the operations of said parties by the issuance and service of said injunction. 

That this affiant knows that said Mason and Dickson and the Dickson-Mason Lum- 
ber Company were compelled to dispose of their railway equipment and supplies at 
considerable loss to themselves, and were compelled to enter into a settlement with 
said J. N. Capps, as set forth in the memorial addressed by them to the Congress of the 
United States, and that said settlement was not only reasonable, but decidedly favor- 
able, under the circumstances, to the said Dickson and Mason and the Dickson-Mason 
Lumber Company. 

That affiant knows further that the said parties were greatly hampered and hindered 
in their operations by the issuance of the said injunction and that they could not fell 
the timber trees upon said boundary of land, saw the same into lumber and market 
the same, with any regularity or continuity of operation, but were compelled to market 
their products most irregularly and after repeated and constant interruptions, thus 
entailing great loss in operation, how much it is almost impossible for this affiant, 
or ^ny one else, to estimate in dollars and cents; that affiant further knows that the 
last period of the suspension of the lumber operations of said Mason and Dickson, and 
the Dickson-Mason Lumber Company continued from said March 5, 1895, to about 
the middle of August, 1898, and that during said period the said parties were not per- 
mitted to develop their said property or to manufacture any timber into lumber, save 
and excejit a portion of the 2,000,000 feet of timber trees, hereinbefore set forth, and 
that only after the same had been greatly damaged as hereinbefore set forth; and that 
during this period said parties were constantly engaged in litigation with the Gov rn- 
ment of the United States over the title to said boundary of timber lands. 

That alhant further knows that at the end of said period the entire business of said 
parties was completely demoralized and disorganized, and that they had to begin 
over again just as if nothing had ever been done, making new contracts, organizing 
the business and starting in every way afresh; that affiant knows that during the sus- 
pension of the operations of the said Dickson and Mason and the Dickson-Mason Lum- 
ber Company for the causes aforesaid, that said parties maintained an office in Ashe- 
ville, N. C, and had men employed on the boundary of timber as superintendents, 
watchers, and inspectors, all at a loss to said parties. 

That affiant knows that the roads said parties had gone to great pains and expense to 
build wore render(>d absolutely worthless l)y nonuse and washouts and had to be 
almost entirely rebuilt, and adiant further knows that as a result of the litigation here- 
inbefore set fortn, said ])arties could not have marketed any lumber dining the period 
thereof save at a consideral)le loss to themselves, because of being hampered, inter- 
rupted, and embarrassed in their operations as aforesaid. 

W. S. Hyatt. 
North Carolina, Jackson Couidij. 

Subscribed and sworn to before the undersigned, a notarv ]>ublic in and for Jackson 
County, N. C, this the 19th day of February, 1908, 

[seal.] " W. .1. Mii.T.ER, Notary Public. 

My commission expires August 21, 1908. 

Now in the next place I want to call your attention to some affi- 
davits as to the character of these fjentlonien. I file here\nth affi- 
davits of T. wS. Morrison, C. J. Harris, F. R. Hewitt, J. P. Sawyer, 



RELIEF OF H. M. DICKSON ET AL. 19 

W. W. Rollins, postmaster; John A. Campbell, mayor; R. M. Fitz- 
patrick, Marcus Erwin, W. B. "Williamson, C. T. Rawls, and J. E. 
Rankin, Governor R. B. Glenn, and Judj^e Fred Moore, which, 
respectively, are as follows: 

Affidavits. 

T. S. Morrison, being first duly sworn, says that he is a resident and citizen of 
Buncombe County, N. C, and chairman of the executive committee of the Wacho- 
via Loan and Trust Company, Asheville Branch; that he knows W. T. Mason and 
Harvey M. Dickson, and has known them for eight years past; that afliant knows that 
each of said parties is a man of the highest character and trustwortliy in every respect, 
and affiant verily believes that any statement made by them, or either of them, 
whether under oath or not, would be entitled to the fullest credit and confidence. 

T. S. Morrison. 

Subscribed and sworn to before me, a notary public, this 20th day of February, 
1908. 

[seal.] W. Scott Radeker, Xotanj Public. 

My commission expires November 14, 1909. 



C. J. Harris, being first duly sworn, says that he is a resident and citizen of Jack- 
son County, N. C, and first vice-president of the American National Bank of Ashe- 
ville, N. C.; that he knows W. T. Mason and Harvey M. Dickson, and has known 
them for fifteen years past ; that affiant knows that each of said part ies is a man of the 
highest character and trustworthy in every respect, and affiant verily believes that 
any statement made by them, or either of them, whether under oath or not, would 
be entitled to the fullest credit and confidence. 

C. J. Harris. 

Subscribed and sworn to before me, a notary public, this 20th day of February, 1908. 
[seal.] S. W. Exloe, Notary Public. 



F. R. Hewitt, being first duly sworn, says that he is a resident and citizen of Bun- 
combe County, N. C, and vice-president of the Asheville Board of Trade; that he 
knows W. T. Mason and Harvey M. Dickson, and has known them for ten years past; 
that affiant knows that each of said parties is a man of the highest character and trust- 
worthy in everj- respect, and affiant verily believes that any statement made by them, 
or either of them, whether under oath or not, would be entitled to the fullest credit 
and confidence. 

F. R. Hewitt. 

Subscribed and sworn to before me, a notary public, this 20th day of February, 1908. 
[seal.] Joe W. Sluder, 

Notary Public. 
My commission expires December 14, 1909. 



James P. Sawyer, being first duly sworn, says that he is a resident and citizen of 
Buncombe County, N. C, and is president of the Battery Park Bank; that he knows 
W. T. Mason and Harvey M. Dickson, and has known them for ten years past; that 
affiant knows that each of said parties is a man of the highest character and trust- 
worthy in every respect, and affiant verily believes that any statement made by 
them or either of them, whether under oath or not, would be entitled to the fullest 
credit and confidence. 

James P. Sawyer. 

Subscribed and sworn to before me, a notary public, this 20th day of February, 
1908. 
[seal.] • J. B. Robertson, N'otary Public. 

My commission expires February 3, 1910. 



20 , RELIEF OF H. M. DICKSON ET AL. 

W. W. Rollins, being first duly sworn, says that be is a resident and citizen of 
Buncombe County, N. C., and postmaster of Asbeville; that he knows W. T. Mason 
and Harvey M. Dickson, and has known them for ten years past; that affiant knows 
that each of said parties is a man of the highest character and trustworthy in every 
respect, and affiant verily V>elieves that any statement made ])y them, or either of 
them, whether under oath or not, would be entitled to the fullest credit and con- 
fidence. 

W. W. Rollins. 

Subscrilied and sworn to before me, a notary puljlic. this 20th day of February, 1908. 
[seal.] A\'. Scott Radeker, Notary Public. 

My commission expires November 14, 1909. 



John A. Campbell, being first duly sworn, says that he is a resident and citizen 
of Buncombe County, N. C, and is mayor of Asheville, and cashier of the Citizens 
Trust and Savings Bank; that he knows W. T. Mason and Harvey M. Dickson, and 
has known them for ten years past: that affiant knows that each of said parties is a 
man of the highest character and trustworthy in every respect, and affiant verily 
believes that any statement made by them, or either of them, whether under oath 
or not, would be entitled to the fullest credit and confidence. 

Jno. a. Campbell. 

Subscribed and sworn to before me, a notary puljlic, this 20th day of February, 1908. 
[seal.] W. Scott Radeker, Notary Public. 

My commission expires November 14, 1909. 



RuFoM. FiTZPATRicK, being first duly sworn, says that he is a resident and citizen of 
Buncombe County, N. C, and cashier of the Ameiican National Bank; that he knows 
W. T. Mason and Harvey M. Dickson, and has known them for five years past; that 
affiant knows that each of said parties is a man of the highest character and trustworthy 
in every respect, and affiant verily b(4ieves that any statement made by them, or 
either of them, whether under oath or not, would be entitled to the fullest credit 
and confidence. 

R. M. FiTZPATRICK. 

Subscribed and sworn to before me, a notary public, this 20th day of February, 1908. 
[seal.] W. Scott Radeker, Notary Public. 

My commission expires November 14, 1909. 



Marcus Erwin, being first duly sworn, says that he is a resident and citizen of 
Buncombe County, N. C., and clerk of the superior court of said county; that he 
knows W. T. Mason and Harvey M. Dickson, and has known them for ten years past; 
that affiant knows that each of said parties is a man of the highest character and trust- 
worthy in every respect, and affiant verily believes that any statement made by them, 
or either (jf them, whether under oath or not, would be entitled to the fullest credit and 
confidence. 

Marcus Erwin. 

Subscribed and sworn to before me, a notary public, this 20th day of February, 
1908. 
[seal.] W. Scott Radeker. Notary Pjiblic. 

My commission expires November 14, 1909. 



W. B. W'lLLiAM.-ioN, being (irst duly sworn, says iluii lit- is a resident and citizen of 
^?uncombe County, N. C., and cashier of tlic Wachovia Loan atid Trust Company; 
that he knows \V. T. Mason and Harvey M. Dickson, and has known them for twelve 
years past; that affiant knows that each of said j)arties is a man of the highest character 
and trustworthy in every respect, and affiant verily believes that any statement made 



RELIEF OF H. M. DICKSON ET AL. 21 

by them, or either of them, whether under oath or not, would l>e entitled to the fullest 
credit and confidence. 

W. 15. Williamson. 

Subscribed and sworn to before me, a notary public, this 20th day of Feliruary, 1908. 
[seal.] W. Scott Raueker, Notanj Public. 

My commission expires Novembin- N. lOOO. 



C. T. Rawls, being first duly sworn, says that he is a resident and citizen of Bun- 
combe County, N. C, and former mayor of Asheville, N. C, and head of the firm 
of Aston, Rawls & Co.; that he knows W. T. Mason and Harvey M. Dickson, 
and has known them for twelve years past; that affiant knows that each of said parties 
is a man of the highest character and trustworthy in every respect, and afhant verily 
believes that any statement made by them, or either of them, whether under oath or 
not, would be entitled to the fullest credit and confidence. 

C. T. Rawls. 

Subscribed and sworn to l)efore me, a notary public, this 20th day of February, 1908. 
[seal.] W. Scott Raueker, Notary Public. 

My commission expires November 14, 1908. 



J. E. Rankin, being first duly sworn, says that he is a resident and citizen of 
Buncombe County, N. C, and is cashier of the Battery Park Bank; that he knows 
W. T. Mason and Harvey M. Dickson, and has known them for ten years past; that 
affiant knows that each of said parties is a man of the highest character and trustworthy 
in every respect, and affiant verily believes that any statement made by them, or 
either of them, whether under oath or not, would be entitled to the fullest credit and 
confidence. 

J. E. Rankin. 

Subscribed and sworn to before me. a nectary public, this 14th day of February, 1908. 
[seal.] \V. Scott Radeker, Notary Public. 

My commission expires November 14, 1909. 



R. B. Glenn, being first duly sworn, says that he is at present governor of the State 
of North Carolina; that he knows the general character of W. T. Mas(m and Harvey M. 
Dickson, and has known it for twelve years; that their general character and reputa- 
tion is good, as being men of character and trustworthy in every respect, and affiant 
believes that any statement made by them, or either of thein, would be entitled to 
the fullest credit and confidence both in the court-house or in a private transaction. 

R. B. Glenn. 

Subscribed and sworn to before me, a notary public, this 27th day of February, 1908. 
[seal.] p. B. Fleming, Notary Public. 

Commission expires Octol)er, 1908. 



Fred Moore, being first duly sworn, says that he is a resident and citizen of Bun- 
combe County, N. C, and judge of the superior court of the fifteenth judicial district; 
that he knows W. T. Mason and Harvey M. Dickson, and has known them ior tliirteen 
years past; that affiant knows that each of saiil parties is a man of high character and 
in his opinion trustworthy in every respect, and affiant verily believes that any state- 
ment made by them, or either of them, wouhl be entitled to full credit and conlidence. 

Fred. Moore. 

Subscribed and sworn to before me, the clerk of the superior court of Gaston County, 
N. C, this the 27th day of February, 1908. In witness whereof I have hereunto set 
my hand and affixed my official seal at my office in Dallas. 

[seal.] Chas. C. Cornwell, 

Clerk of the Superior Court. 



22 RELIEF OF H. M. DICKSON ET AL. 

Mr. Bourne. Then I have affidavits here as to Mr. Dickson's 
character, made by Mr. W. F. Best and Nathaniel Beaman, of Norfolk, 
Va., and Lewis L. Loliman, of Mattoon, 111. The individual claim- 
ants came from Mattoon, 111., to Asheville, N. C. The affidavits men- 
tioned read as follows: 

Mr. W. F. Best, being first duly sworn, says that he is a resident and citizen of Nor- 
folk, Norfolk County, Va. , and is secretary of the Ferd. Brenner Lumber Company; that 
he knows Harvey M. Dickson, and has known him for the past five years; that affiant 
knows that the said Harvey M. Dickson is a man of the highest character and trust- 
worthy in every respect, and affiant believes that any statement made by him, whether 
under oath or not, would be entitled to the fullest credit and confidence. 

W. F. Best. 
Subscribed and sworn to before me, a notary public, this 26th day of February, 1908. 

Edward Spalding, 
Notary Public, Norfolk City, Va. 



Nathaniel Beaman, being first duly sworn, says that he is a resident, a citizen, of 
Norfolk, Norfolk County, Va., and is president of the National Bank of Commerce; 
thai he knows Harvey M. Dickson, and has known him for the past five years; that 
affiant knows that the said Harvey M. Dickson is a man of the highest character and 
trustworthy in every respect, and affiant believes that any statement made by him, 
whether under oath or not, would be entitled to the fullest credit and confidence. 

Nathaniel Beaman. 

Sworn and subscribed to before me, a notary public, this 26th day of February, 1908. 

F. A. Porter, Notary Public- 

My commission expires June 11, 1908. 



Lewis L. Lehman, being first duly sworn, says that he is a resident and citizen of 
Mattoon, Coles County, HI., and is president of the First National Bank; that he 
knows Harvey M. Dickson and has known him for the past twenty years; that affiant 
knows that the said Harvey M. Dickson is a man of the highest character and is trust- 
worthy in every respect, and affiant believes that any statement made by him, whether 
under oath or not, would be entitled to the fullest credit and confidence. 

Lewis L. Lehman. 

Subscribed and sworn to before me, a notary public, this 24tli day of February, 1908. 

[seal.] W. T. Osborne. Notary Public. 

STATEMENT BY MR. BOURNE BEFORE THE COMMITTEE ON 
CLAIMS FOR CLAIMANTS. 

Mr. Bourne. I desire to submit a statement in which the facts 
connected with this claim are set out in clironolooical order, so that 
you gentlemen will have no trouble in following or undertsanding 
them. 

Mr. Bourne then dictated tlie following statement : 

"In the matter of the claim of Dickson, Mason, and the Dickson- 
Mason Lum})er Company for chtmages against the United wStates 
Government : 

"D. L. Boyd bought the timber trees above certain sizes on the 
Cathcart tract of land in the Qiialla bouiuhiry from the Eastern 
band of Cherokee Indians in September, 1S93. The Indians con- 
veyed as a corporation, having been incorporated by chapter 211 of 
the private laws of North Carolina of 1889, after a decision of the 
United States vSupreine Court declaring them citizens of North Caro- 
lina in 1886." 



RELIEF OF H. M. DICKSON ET AL. 23 

Mr. Fulton. It seems to nie tluit mo know i2;eiu'rally, Mr. Kitchin 
and I, the nature of the daiin, and now if you will (ret into shape a 
full and complete statement, I think it would be serviceable. I 
would suggest that it all ought to be in one paper, in one statement, 
setting out the history of the Indians, following u]) with your trans- 
actions step by step, and then all we will have to do is to read that 
to the committee, and then we will take the evidence here as to the 
damages. Leave out the argument entirely in regard to these 
Indians. 

Mr. Bourne. As to their citizenship? 

Mr. Fulton. Yes; and state exactly the facts. If you \\ ant to' file 
a brief in atldition, you can do that. 

Mr. KiTCiiiN. The memorial sets out all the facts? 

Mr. Bourne. Yes. 

Mr. Kitchin. If there is anything in your statement that is not 
included in the memorial, attach that to the memorial. 

Mr. Fui^TON. Our time is so limited to-night that I do not think you 
should take up time in dictating the statement. 

Mr. Kitchin. In the memorial you can put in any additional facts 
that may occur to you that would throw light on the case in addition 
to the facts there set out. 

Mr. Bourne. My statement will give the exact dates. That is the 
only difference between that and the memorial. You see, 1 collated 
certain facts in this matter not to submit to the connnittee, but really 
as a basis of my statement to you. I expected as we went along that 
you would ask questions if anything was not clear. 

Mr. Fulton. Very well. 

Mr. Bourne (resuming his dictation) : 

"D. L. Boyd bought the timber trees, as before mentioned, on the 
Cathcart tract of land in the Qualla boundaiy from the Eastern Band 
of Cherokee Indians in September, 1893. The Indians conveyed as a 
corporation, having been incorporated by Chapter 211 of the private 
laws of North Carolina of 1S89, after a decision of the United States 
Supreme Court, declaring them citizens of North Carolina in 1886." 

Mr. Bourne. The Imlians conveyed as a corporation, having been 
incorporated by chapter 211 of the private laws of North Carolina of 
1889, after a decision of the United States Supreme Court in the case 
entitled "The Eastern Band of Cherokee Indians against The United 
States and the Cherokee Nation" (117 U. S., 288), in which decision 
they w'ere declared citizens of North Carolina, said decision being 
rendered in 1886. Dickson and ]vlason l)ought from Boytl in flanuarv, 
1894, paying for said timber trees $25,000. 

Mr. Fulton. What was the general nature of that suit ( What 
point was involved in that suit? 

Mr. Bourne. The Eastern band, the Government, and Cherokee 
Nation sued for part of the national funds, alleging that it iiad never 
gotten its proportion of the funds belonging to the Cherokee Nation, 
when the individuals belonging to the Eastern band separated them- 
selves from the nation after the treaty of New Echota in 1835. 

Mr. Fulton. Was the question of citizenshij) of the State directly 
involved ? 

Mr. Bourne. I think it was. That is my construction of the case. 
It was necessary to the deci.sion of the case. The case originatetl in 
the Court of ('laiins, and that court decided this very question. 



24 RELIEF OF H. M. DICKSON ET AL. 

Mr. FuLTOx. In that case there was not any question as to their 
power to acquire and dispose of property? 

Mr. Boi'RME. Xo, except as an incident of citizenship. The ques- 
tion was directly involved whether they were tribal Indians and mem- 
bers of the Cherokee Nation. 

Mr. Fn.TOX. And the courts held that they were not? 

Mr. BouRXE. That they were not tribal Indians. The Dick- 
son-Mason Lumber Company was organized in January, 1895. 
It was composed of H. M. Dickson, W. T. Mason, and one or two 
nominal incorporators, and this property was conveyed to the 
company 

Mr. Fulton. Does that paper state the name under which these 
Indians were incorporated? What was the name they went by? 

Mr. Bourne. The Eastern Band of Cherokee Indians. 

Mr. Fui.TON. That was their corporate name? 

Mr. Bourne. Yes, sir. 

This property was conveyed to the Dickson-Mason com])any for 
the purposes of development in January, 1S05. In this connection 
I had better state that the lands uj)on which these timber trees were 
located were wild mountain lands, from 10 to 22 miles from the rail- 
road, and these gentlemen — Dickson and Mason — knew when they 
purchased them tliat it would require the expencHture of large s\mis 
of money in order to make the timber proposition commercially 
valuable. The property was not only a great distance from the rail- 
road, but it was in a very rougli and difficult country. There was 
very little capital in western North Carolina at tlie time, and in the 
opinion of a great many experts this timl)er proposition was not a 
commercial proi)osition at that time. 

Mr. KiTCHiN. Were these men among tlie first timber men that 
went into that section for the manufacture of timber? 

Mr. BouRX'E. They were the first men who ever went in tliere to 
develop timber interests on a large scale, so far as I know. 

Mr. Fulton. What kind of timber was that? 

Mr. Dickson (interrupting). Hardwood — ash, oak, and so on. A 
great deal of the timber had been cut close to the lines of the railroad, 
within 2 and 3 and 4 miles back, but nobody had gone back into that 
section such a distance as this was, over sucli a rough country. There 
had been several river propositions, where the timber adjacent to 
flowing streams had been taken up away from the railroad, but there 
was no such proposition here. The nearest mill site we could get 
on the pro])erty was 9^ or 10 miles. We called it 10 miles, and that 
lumber there had to be railroaded out of there or wagoned out. 

Mr. Kitchin. What county is that ? 

Mr. Dickson. In Swain County, and a little in Jackson County. 

Mr. F^ultox. We will likely get to that on the (|uestion of damages? 

Mr. Bourne, "^'es. 

It was feared by the purchasers, because they had been so advised, 
that the Government might claim some right of control over these 
lands, or over the Indians, and might interfere with the purchasers' 
operations, though the latter were, also, advised that the Government 
had no legal rights in the premises. Accordingly Boyd was put to 
work to induce the Government to assert any authority it might 
claim in orth^ to have the matter settled, though no expenditure 
ainoimlinir to anvthincr was made at this tinu\ for obvious reasons. 



RELIEF OF H. M. DICKSON ET AL,. 25 

This action was also taken on account of repeat^nl demands of the 
Indians that work be<j;in. They expected to flo part of the work, and 
they actually received a good deal of employnient later. 

Boyd's work produced the desired result, and an injunction was 
served upon the purchasers early in the fall of 1<S94. 

Mr. Fulton. What was the title of that actions! 

Mr. Bourne. That action was entitled "The United States of 
America ao;ainst 1). L. Boyd, Harvey M. Dickson, W. T. Mason, and 
the Dickson-Mason liUmber Company" — no, the company had not 
been oro;anized yet — "and the Eastern Band of Cherokee Indians." 
Now, it is possible that one or two Indians wlio (Hssented fi-om the 
contract joined wit;> tlie Government, and an invitation to partici- 
pate as plaintiffs in that suit was extended to others of the Indians 
to come in and make themselves parties ])laintiir; but none of them 
came. 

Mr. Fulton. When was that acticm brought '( 

^Ir. BoL'RNE. It was brought in the United States circuit court at 
Asheville, X. C, or really, I believe, it originated at Greensboro. It 
was in the United States circuit court for the western chstrict of North 
Carolina. Boyd's work produced tlie desired result, aiul an injunc- 
tion was served upon the pu.rchasers early in tlie fall of 1S!)4. Work 
was then suspended until the matter could be ju(Hcially determined. 

The defendants in the case were the claimants here and the Eastern 
Band of Cherokee Indians, as a corporation or comnmnity. The 
great body of the Indians throughout the entire ccuitroversy fought 
side by side with the purchasers and sought to sustain the Bo3"d 
contract. 

Mr. KiTCHiN. In that suit w^hat did the Government allege as 
grounds for the action? 

Mr. Bourne. They alleged that these Indians, according to my 
recollection — the two suits w^ere practically identical — that these In- 
dians were tribal Indians, subject to the control and guardianship 
of the United States Government, and that a fraud had been com- 
mitted upon them, and they had been overreached in this trade. 

Mr. Flt^ton. And they based the real rights, however, to maintain 
the action on the ground that the Indians were not capable of enter- 
ing into a contract ( 

Mr. Bourne. That subsequently became their main ground. At 
first it was the allegation of fraud that they seemed mainly to rely on. 

Mr. Fulton. That was the right that the Cxovernment had to 
step in to prevent fraud ^ 

Mr. Bourne. Yes. 

The coniluct of the suit was evicknitly conunitted to the Depart- 
ment of Justice, which took the matter up and consitlered the same, 
with the result that on the 22d day of October, 1894, Hon. Richard 
Olney, then Attorney-General of the United States, wrote a letter to 
the Secretary of the Interior 

Mr. Kitchin. Will you file a copy of this letter^ 

Mr. Bourne. I have it right here. 

Mr. Kitchin. Say "a copy of which I herewith tile with my 
statement." 

Mr. Fulton. Give it to the steuographer, and lie can attach it 
and mark it "Exhibit A." 



26 RELIEF OF H. M. DlCKSO^' ET AL. 

Mr. Bourne. Yes. He wrote a letter to the Secretary of the In- 
terior upon the subject of the status of the Eastern Band of Cherokee 
Indians and their right to make contracts, a copy of which letter is 
marked '"Exhibit A" and herewith submitted as a part of this state- 
ment. 

Exhibit A. 

Department of Justice, 
Washington, D. C, October 22, 1894- 
The Secretary op the Interior. 

Sir: In compromising the litigation concerning the lands of the Eastern Band of 
Cherokees in North Carolina, 1 have caused a decree to be entered, a copy of which 
is inclosed, together with a copy of a report of the master in chancery in regard to it. 
This decree concerns lands within what is called the "Qualla boundary." 

Other lands lie without that boundary, and to these a deed was made by one Johnson 
to the Commissioner of Indian Affairs and his successors forever for the use and benefit 
of the Eastern Band of Cherokees. The full text of this deed is given in Executive 
Document 128, Fifty-third Congress, second session. 

It is deemed advisable, notwithstanding our opinion that the Commissioner of 
Indian Affairs has taken no title under that deed as well on account of the nature of 
the proposed grantee as by reason of the attempt to pass an unalienable title con- 
traty to the policy of the law of North Carolina, that the present Commissioner should 
remove the cloud upon the title of the Indians by making a conveyance to the heirs 
of Johnston, who stands ready to convey to the corporation known as the Eastern 
Band of Cherokee Indians. (Private Laws of North Carolina, 1889, ch. 211.) It is 
also proposed to make the Commissioner a party to the litigation, and cause his deed 
to be ordered and confirmed by the court. In considering the compromise it has 
appeared to me that the legal status of the Indians in question is that of citizens of 
North Carolina; that they have been in all respects citizens since the date of or soon 
after the treaty with the Cherokees of 1835, and this with the consent of the United 
States expressed in that treaty, by the election of the Indians and the consent of 
North Carolina. They have voted at all elections for half a century, and are citizens 
of the United States. It seems clear that Congress could not, by the act of July 27, 
1868, or otherwise (if such was the intention) make of them an Indian tribe or place 
them under the control of the United States as Indians any more effectually than if 
they had been white citizens of Massachusetts or Georgia. (Eastern Band of Cherokee 
Indians v. The United States and Cherokee Nation, 117 U. S., 288). Neither could 
such citizens of North Carolina make themselves a tribe of Indians within that State. 

Accordingly the suit, which was recently instituted by this Department at the 
request of yours against D. L. Boyd and others on account of timber trespass alleged 
to have been committed by them in pursuance of a contract not approved by the 
Commissioner of Indian Affairs, seems to be one which it is no part of the duty of the 
United States to maintain. If these A'iews meet with your approval, I shall direct 
the dismissal of that suit, and also withdraw the direction given to the United States 
attorney for the district to enter his appearance in defense of another suit lirought 
against one H. G. Ewart for fees claimed for executing a contract with the said Boyd, 
which appearance was likewise at the instance of your Department. If, however, 
my views do not meet yoiu* approval, I shall be pleased to hear any suggestions you 
may desire to offer. 

I inclose a copy of a letter from the United States attorney for the district, dated 
the 10th instant, in which you will find mention of the suit against Boyd and others. 

I am very desirous of closing at once this business of the com[)romisc, and should 
therefore be pleased to have an answ<>r at your earliest convenience. 
Respectfully, 

K. OiAEv, Attorney-Gcnrrol. 

In that letter he held that the Government had nothino; to do with 
the Indians. In that letter, as will appear therefrom, the Attorney- 
General held and advised the Department of the hiterior that these 
Indians were citizens of the State of North Carolina and had the 
right to make (contracts just as other citizens of a State. 

Mr. KiTCiiiN. And the Government ought not to maintain the 
suit ( 

Mr. Bourne. Yes, and that the suit should be dismissed. That is 
the laniruage that he used. 



RELIEF OF H. M. DTUKSON ET AL. 27 

Mr. KiTCHiN. What became of that suit? 

Mr. Bourne. That is what I am goin^ to take up now. 

Following this letter, at the next regular term of the Federal court 
at Ashville, N. C, in November, 1894, the Government came into 
court and took a nonsuit in said case. A copy of the letter of the 
Attorney-General above referred to was filed among the records of 
said case, and claimants and their attorneys became aware of its 
contents. They thought, and I respectfully submit that they had a 
right to think, m view of this letter and of the action of the Govern- 
ment in taking the nonsuit, that the Government would no longer 
claim any right to interfere in so far as the Boyd contract affected 
the Indians and their property. This was generally understood by 
all the interested parties at the time. Accordingly the purchasers 
immediately began to make the large expenditures necessary for the 
proper development of their property — ■ — 

Mr. Dickson. Immediately the purchasers moved to the State of 
North Carolina. You see, we had incurred practically no expense 
prior to that time, and had lived in Illinois. 

Mr. Bourne. Well, immediately the purchasers moved from Mat- 
toon, 111., their then place of residence, to Asheville, N. C, and began 
to make the large expenditures necessary for the proper develop- 
ment of this property, and in addition to the $25,000 purchase 
price they probably expended in cash as much as $25,000 more, 
besides making contracts which called for the expenditure of large 
sums later. In fact, the private fortunes of both the individual 
claimants were practically involved in tliis purchase and develop- 
ment. 

It turned out later that the Department of the Interior was not 
satisfied with the position of the Department of Justice on the 
subject of the status of the North Carolina Cherokees, and had the 
Department of Justice, in March, 1895, to institute another injunc- 
tion suit, alleging that the Indians had been led into making the 
Boyd contract by fraud and had been overreached in the transac- 
tion. The allegations of this bill were practically the same as those 
of the first bill. 

Mr. Fulton. What attorney brought this second action for the 
Government ? 

Mr. Bourne. The United States attorney for the western district 
of North Carolina, Hon. K. B. Glenn, who is now the governor of 
the State. 

Mr. Fulton. The same one that brought the first actions 

Mr. Bourne. Yes, sir. This matter came on for hearing upon 
bill and answer, the defendants denying the fraud or undue influence, 
and Judge Charles H. Simonton, United States circuit judge, ren- 
dered the opinion set out in the case of ' ' The United States against 
Bo3^d" (68 Fed. Rep., 577), in substance holding that the Eastern 
Band of Cherokees were tribal Indians and wards of the Government, 
and that the Government of the United States, like any other guard- 
ian, had the right to interfere in that transaction but for one ])urpose 
only, to protect said wards from fraud and to see that any contract 
made by them was for their benefit and not to their detriment. 
Accordingly he referred the matters of controversy upon the bill and 
answer to the standing master, Hon. R. M. Douglas, of Greensboro, 
N. C, who afterwards served eight years on the supreme bench of 



28 RELIEF OF H, M. DICKSON ET AL. 

North Carolina. Judge Douglas reported that the transaction was 
free from fraud or undue influence and that the trade was to the 
advantage of the Indians. 

Mr. KiTCHiN. His report is set out in the memorial? 

Mr. Bourne. Yes. 

Mr. KiTCHiN. It will be filed with the committee. 

Ml". Bourne. This report was made by the dii'ection of the then 
United States district attorne}^ for the western district of North Caro- 
lina, Hon. R. B. Glenn. This report was also made on the testimony 
of the Government's witnesses and without the introduction of any 
testimony on behalf of the defendants. 

Upon the coming in of the master's report it was confij-med and 
the trade with the Indians was ordered ratified by the court, the court 
holding that it had the power to ratify said contract. This decision 
is reported under the title of ''The United States v. Boyd" (68 Fed. 
Rep., 577), both Judge Sunonton and Judge Dick delivering opinions. 

Mr. Fulton. To the same effect were the opinions? 

Mr. Bourne. Yes. They agreed. The Government was dis- 
satisfied with this decision and appealed to the circuit court of appeals 
for the fourth circuit. In November, 1897, this court decided that 
these Indians were tribal Indians and the Boyd contract absolutely 
void, the opinion therein being delivered by Judge Goft'. 

Mr. Kitchin. What report is that in? 

Mr. Bourne. I will give it to you in a minute. This case is re- 
ported under the title of "United States v. Boyd" (27 C. C. A., 592; 
83 Fed. Rep., 547) . After this decision the claimants and the Eastern 
band of Cherokee Indians appealed to the United States Supreme 
Court. Pending that appeal the Interior Department itself con- 
firmed the Boyd contract in the latter part of August, 1898, and, so 
far as the claimants were concerned, there was nothing to be decided 
by the United States Supreme Court, and the appeal was not further 
prosecuted. 

It may be remarked in passing that Judge Goff in liis decision 
never referred to the case of The Eastern Band of Cherokees against 
The United States and The Cherokee Nation, reported in the Twentieth 
Court of Claims Report, page 449, nor to the same case in 1 17 United 
States, 288, where the decision of the Court of Claims was affirmed and 
the whole matter of the status of these Cherokees is discussed. 

As to the })resent view of the Department of the Interior, based 
upon all of the decisions herein mentioned, see the report of the 
Commissioner of Indian Affairs to the Secretary of the Interior for 
the fiscal year ending June 80, 1903, from pages 97 to 103. *I would 
just like to call your attention to liis conclusions, after reviewing 
these tlecisions. It is very short [reads] : 

The general assembly of the State of North Carolina in 1889 (^private laws, chap, 
211), passed an act incorporating the Eastern band of Cherokee Indians in North 
Carolina, and the said band is now a corporation duly organized under the laws of tliat 
State, with power to siie and be sued. Being governed liy the above decisions and 
legislation, this Otiice in its administrative capacity holds that this band of Cherokee 
Indians, holding their lands in fee, can alienate the same, Init the contract is review- 
able by the (lovernment U)V one purpose only, to protect ihem from fraud or wrong, 
and thai liaving ])eeii incorporated as a l)()dy politic, with the iH)wer of suing and being 
sued, the acts of tliis l)aii(l arc rcviewal)le only to protect iIkmh from fnnid or wrong. 

It was in 1903 that this report was written. 

Mr. Fi'LTON. You say the Interior Department stepped in and 
voluntarilv allirmed that contract? 



RELIEF OF H. M. DICKSOIS' ET AL. 29 

Mr. Bourne. Yes, sir. 

Mr. FiiLTON. When was that? 

Mr. Bourne. That was in August. We received notice of it in 
August, 1898. 

Mr. Fulton. What did the Department do? 

Mr. Bourne. Mr. Smathers, you see, was representing the Eastern 
band of Cherokee Indians, and they wanted the contract confirmed, 
and we had aheady filed an apphcation to have it confirmed before 
the first suit. We did not want a suit. We had made apphcation 
to have it confirmed, so as to remove any trouble. 

Mr. Fulton. They made application before the first suit? 

Mr. Bourne. Yes. 

Mr. Fulton. What action was then taken by the Department? 

Mr. Bourne. It was turned down. Mr. Crawford was in Congress 
at the time and he was acting for Boyd, not for Mason and Dickson. 
That was before these latter gentlemen had anything to do with it. 
When we were discussing the question of title and the right of the 
Indians to convey, Boyd was assuring the prospective purchasers 
that even if the Government could interfere there would be no 
trouble; that he expected a telegram at any moment that the con- 
tract had been confirmed. Mr. Smathers, who represented the 
Indians, was also working for confirmation all the time. 

Mr. Kitchin. But in the meantime the Department of Justice 
stepped in and the Attorney-General rendered his opinion? 

Mr. Bourne. Yes; before Mason and Dickson did a thing in the 
way of expending money or making contracts. 

Mr. Fulton. You say the Interior Department at first refused to 
confirm or ratify the agreement? 

Mr. Bourne. Yes. Tt declined to do it. 

Mr. Fulton. Did they give any reason why? 

Mr. Bourne. I do not remember. 

Mr. Mason. A party by the name of W. C. Smith, of south Georgia, 
had made a previous contract almost in the exact terms with the 
contract that Boyd made afterwards, after it had expired; but he 
was up here in the Department trying to get his contract confirmed. 

Mr. Bourne. His contract had already expired. 

Mr. Mason. Before the Indians made the contract with Boyd, 
Smith's contract had expired, and they made a contract w^th Boyd. 
Those two contracts came up here for confirmation. 

Mr. Bourne. The Indians did not go back on the prior contract. 

Mr. Mason. No, but his time had expired, and they made a new 
contract with Boyd . 

Mr. Bourne. I had forgotten about Smith's connection with it. 

Mr. Dickson. The Commissioner of Indian Affairs in a letter — 
we may have it in the files somewhere — said he would not confirm 
either contract, but that if he confirmed either one, it would be the 
Smith contract, because of its priority. 

Mr. Kitchin. After they refused to confirm the contract — that is, 
the Interior Department — did the Attorney-General render this 
opinion, after the first suit was brought to test it? 

Mr. Bourne. Yes. 

Mr. Dickson. Yes. 

Mr. Bourne. With the result detailed in the statement I have 
made. 



30 RELIEF OF H. M. DICKSON ET AL,, 

Now, I think it very clear that we shoiihl be allowed all such 
damages as claimants, sustained by reason of the first injunction suit, 
because the Government voluntarily allowed judgment to go against 
it in that case. In other words, it lost the case and should be charge- 
able with the damages accruing therein, like an individual. 



proceedings of second session of subcommittee. 

Committee on Claims, 

Saturday, February 29, 1908. 

The subc&mmittee met this day at 10.30 o'clock a. m., Hon. 
Claude Kitchin, chairman of subcommittee, in the chair. 

Mr. Kitchin. Well, Mr. Bourne, suppose you begin with those 
items of damages. 

Mr. Bourne. Very well, Mr. Kitcliin. Do you want Mr. Dickson 
to be sworn? 

Mr. Kitchin. No; as the memorial is sworn to, it is unnecessary. 

Mr. Bourne. The memorial is sworn to, anyhow. 

Mr. Kitchin. Did you file a statement of damages with the me- 
morial ? 

Mr. Bourne. Yes. The memorial, including statement of dam- 
ages attached thereto, is verified by each of the individual claimants. 
Now, Mr. Dickson. 

STATEMENT OF MR. HARVEY M. DICKSON, OF NORFOLK, VA. 

^Ir. Dickson. The first item, gentlemen, is ''Interest on purchase 
price, $25,000," for about four and one-half years. 

Mr. Mason. It is a little more than that, is it noti 

Mr. Dickson. Yes; it is a little more than that. I was not, of 
course, figuring to the day. 

Mr. Kitchin. Is that the time that you were not permitted to do 
any work or cut any of the timber, after the first injunction until it 
was settled? 

Mr. Bourne. Go ahead and explain it, and answer the questions, 
IVIr. Dickson. 

Mr. Dickson. I made up tliis statement a good while ago. Some 
of it is not as fresh as it was when I made it. This first item is 
"Interest on the purchase price, $25,000," for four and one-half 
years, or until the date of confirmation of contract by the Govern- 
ment, less $1,200 rebate allowed by the Indians. We got the Indians 
to allow $1,200 of interest on some deferred payments. 

Mr. Kitchin. My question was. Was your plant idle and your entire 
operations suspended during those four and one-half years, so that 
you could not cut any of the standing timber — idle by virtue of the 
injunction? 

Mr. Dickson. Yes, our whole operations were suspended. 

Mr. Fulton. On what ground do you charge that against the 
Government ? 

Mr. Bourne. Explain what the item is, what it means. 

Mr. Dickson. Was idle by virtue of the injunction. This item 
was not for the plant, however. This was simply for the interest 
on the purchase price of the property that we had either paid or 
were paying interest on during that time. 



RELIEF OF H. M. DICKSON ET AL. 31 

Mr. Bourne. Now, Mr. Dickson, were you paying the Indians 
any interest durinii; this period when your operations were suspended 
by this injunction? 

Mr. Dickson. We were. 

Mr. Kitchen. You were forbidden by that injunction to cut any 
of the standing tind^er. during the four and one-half years for which 
you charge interest? 

Mr. Dickson. Yes, sir. 

Mr. Bourne. And does that item represent interest that you 
actually paid or lost on account of the purchase price during the 
period when 3'our operations were suspended ? 

Mr. Dickson. It represented interest on notes for part of pur- 
chase money that were held by the Indians at that time, or interest 
on money that had been paid in cash on account of the purchase 
price of this timber. 

Mr. Fulton. In addition to this item you have charged against the 
Government all that you lost from not being able to run the plant, 
have you not, and loss of lumber? 

Mr. Dickson. No, we have not. You will find that we have to 
make an equitable bill. We have not chargetl up all we lost by any 
means in this matter. 

Mr. Fulton. The reason I ask the question is this: Tliat it seemed 
to me that if you had charged the Government up what j'ou lost from 
not operating the plant that w^ould include your damages, and you 
would not be entitleil to interest. 

Mr. Bourne. Each element of damage is statetl there, Mr. Fulton. 

Mr. Fulton. What is the amount of the item? 

Mr. Dickson. The net amount of the item is $5,738. 

Mr. Bourne. Mr. Dickson, in that amount is there included any 
item of interest on your claim from the time when the contract was 
confirmed by the Interior Department — that is, for the past ten 
3'ears, from i898 to 1908? 

Air. Dickson. No, sir. In fact this item reads, "Until date of 
confirmation by the Government, less $1,200 rebate allowed by the 
Indians." 

j\[r. Fulton. In order that I may have the matter fully in mind as 
we go along, $25,000 was the purchase price? 

Mx. Dickson. That Avas the piu-chase price? 

Mr. Fulton. And the other exj)enditm-es you matle were in the 
way of improvements and supplies ? 

tir. Dickson. Yes. We took the purchase price of the property 
that w^e were either paying during the time we were hung up by the 
injunction — either that Which we paid to the Indians or had previously 
paid, and in order to be perfectly fair and equitable in the matter 
we allowed from this $1,200, which, as I said, we succeeiled in getting 
the Indians to allow us in consequence of our paying two notes, a 
balance on one note and another note, according to our contention, 
that was not due, because we had been suspended all this time and 
because of the fact that this interest had been accruing, and we got 
a $1,200 rebate allowed oil' the interest charge. 

Then the next item is ''Expense of two trips to look at work, and so 
forth, at Soco, $120." 

Mr. Fulton. What was that for? What was the occasion or neces- 
sitvof it? 



32 RELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. You see, we were on the grouiul in December, and 
we bought the property in January and went back to Ilhnois, and 
this was one trip when I came down wlien the Indians insisted on 
being put to work, doing something. The Indians were backing us 
and wanted this contract confirmed, and were anxious to go to work. 

Mr. Fulton. That was really an expense that grew out of the 
litigation ? 

Mr. Dickson. Expense in going about to see about building roads, 
and generally looking after the property. 

Mr. Fulton. Would you have been at that expense if there had 
been no litigation? 

Mr. Dickson. No, sir. 

Mr. Fulton. Was this item yon charge for after the second 
mjunction ? 

Mr. Dickson. After the first injunction. No, it was before the 
first injunction, in the spring of 1894. 

Mr. Fulton. Would you have had to go down there, whether there 
was any injunction or not? 

Mr. Dickson. There had been no injunction at that time. I went 
down and set the Indians to work to see whether the Government 
would interfere. There had been threats of an injunction. 

Mr. Fulton. On what ground do you justify that claim against 
the Government? 

Mr. Dickson. On the ground that if we had been permitted to go 
on with our work; if we had had the confirmation 

Mr. Fulton. As I understand it, Mr. Dickson, at the time of this 
expenditure there was some doubt possibly existing in your mind 
whether the Government was going to interfere? 

Mr. Dickson. Yes. 

Mr. Fulton. But at that time it had not interfered, and whether 
it would have interfered or not you would likely have had to go to 
that expense, would you not? 

Mr. Dickson. Probably; but we would have been operating the 
property and would have gotten the benefit of it. 

Mr. Fulton. Then on what ground tlo you base that claim against 
the Government? What had it done up to that time? 

Mr. Dickson. Nothing; but it had failed to confirm the contract. 

Mr. Fulton. The Government had not stopped it yet. 

Mr. Bourne. Let me make this statement right in that connection. 
I think I understand the contention. This expenditure was a total 
loss by reason of the subsequent action of the Government, whereas 
it would not have been a total loss if it had not been for the subse- 
quent action of the Government. 

Mr. Fulton. Then the expense would not have been a total loss, 
but the work that was done or ordered by reason of going down 
there would have been a total loss, and would not the proper charge 
have been for the work done there? 

Mr. Dickson. The expense itself was really a total loss. The 
other charge as to work done is a separate item. The exj)en(litures 
were absolutely useless by reason of the subsequent action of the 
Government. 

Mr. KiTcniN. Go ahead with the next item. 

Mr. Dickso.x. "Paid D. L. Boyd for making roads, $200." 

Mr. Fulton. When was that, and how nnich? 



RELIEF OF H. M. DTCKSON ET AL. 33 

Mr. Dickson. That was on the 23d clay of Fehruary, 1895. Tlie 
settlement was made then. 

Mr. Fulton. When was tlie contract made? 

Mr. Dickson. You mean the contract with Boyd? 

Mr. P^ULTON. Yes. 

j\Ir. Dickson. There was really no contract witli him. As I said 
hefore, the Indians insisted on our going to work down there, and in 
order to satisfy tlie Indians and keep the matter moving right along 
we went to work Vniilding roads and preparing to cut the timher. 

Mr. Fulton. When did you employ this man? 

Mr. Dickson. wSometime during the summer or fall (^f 1894, as 
I remember. 

Mr. KiTCHiN. Before the first injunction? 

Mr. Dickson. Before the first injunction. 

Mr. Fulton. What was the amount of that work? 

Mr. Dickson. Two hundred dollars. 

Mr. Fulton. What did he do? 

Mr. Dickson. He built roads and cut roads through the timber 
and graded roads. 

Mr. Fulton. How far distant were they? 

Mr. Dickson. I think the roads were started in tliree different 
places. 

Mr. Fulton. How long was the time of the Avork? 

Mr. Dickson. I do not know the exact time. He rendered a bill 
against us of seven himdred and some odd dollars for the roads, but 
we refused to pay it. 

Mr. KiTCHiN. After this last injunction was dissolved or the matter 
had been settled, did you not make use of these roads afterwards? 

Mr. Dickson. No, sir. 

Mr. KiTCHiN. Wliy? 

Mr. Dickson. Because they had been washed away. As 3-011 will 
understand, Mr. Kitchin, mountain roads wash away very soon. They 
were practicall}^ valueless to us. 

Mr. Kitchin. After four years those roads were washed up and 
became practically useless? 

Mr. Dk^kson. Yes. We went right on and built them over again. 
We put in, for instance, culverts over runways, over little streams. 
We put in logs on low side of roads to keep them from washing away. 

Mr. Kitchin. These roads are .built temporarily, just to last long 
enough to get out the timber? 

Mr. Dickson. Yes. 

Mr. Fulton. You could not tell just how long Boyd was emj)loyed 
and how many men he had to help him, so as to get at the foundation 
of the reasonableness of the thing? 

Mr. Dickson. I suppose he was employed in there about sixty or 
ninety days. I know I went down there, and there would have- been 
a great deal larger bill, but I saw that what he was doing might be 
away from where we wanted the roads, and I thought he was spending 
too much money, and I stoj)])ed him. 

Mr. Fulton. IIow many men had he employed? 

Mr. Dickson. I think he had twelve when I Avent down there. 
Of course that is a good while ago. They were all Indians that Ik^ had 
employed, you understand. 
34540—08 .3 



34 RELIEF OF H. M, DICKSON ET AL. 

Mr. FuLTox. You do not know how luucli supplies he furnished in 
the way of tools'? 

Mr. DiCKsox. Hammers, and axes, and nails, and things like that ? 

Mr. FuLTOx. Yes. How much for that? 

Mr. DicKsox. That would be a matter of memor}". I think I paid 
the bill myself, and I think we paid about twenty some odd dollars, 
I think $22 and sometliing, for shovels and picks and tools. That is 
not in this $200 item at all, you understand. 

Mr. Fulton. This claim, then, includes simply claims for labor? 
It does not include anything for supplies? 

Mr. DiCKSox. No. The supplies we furnished ourselves. We 
bought and paid for them. 

Mr. FuLTox. You think that was a reasona])le charge for the work 
that was done? 

Mr. DiCKSOX. It was really more than reasonable, and as I tell 3^ou, 
Mr. Boyd's bill was seven hundred and odd dollars, and we threatened 
to let him sue for his bill, because when this bill was paid we were hung 
up with the injunction and did not know whether we would ever get 
the property at all. He came in and said, "I expended this money 
under your direction," and he had a bill of seven hundred and some 
odd dolhirs against us, and finally we compromised it at $200 and gave 
him a check for it. 

Mr. BouRXE. Now, Mr. Dickson, did vou and Mr. ]\Iason thoroughly 
investigate this work of Mr. Boyd's before you arrived at this settle- 
ment with him \ 

Mr. DiCKSOX. We looked it over; yes. 

Mr. BouRXE. Did you satisfy' yourselves that tliat was a reasonable 
and fair settlement with Boyd? 

Mr. DiCKSOX. I can not say about Mr. Mason, but I satisfied myself 
that it was. 

Mr. KiTCHiN. What did Boyd pay to the In(Hans for that land? 

Mr. Dickson. Fifteen thousand dollars. 

Mr. KiTCHix. What did you pay? 

Mr. Dickson. Twenty-five thousand dollars. He bought it on the 
29th of September, 1893, and we closed the trade for it on the 12th 
day of January, 1894. 

Mr. Bourne. I will ask you, Mr. Dickson, if this projjcrty had not 
been advertised before it was ever sold to Boyd — advertised in 
(Hfferent lumber ))apers? 

]\Ir. DiCK.soN. I have been so informed. T never saw the adver- 
tiseinents. 

Mr. Fulton. You had no dealing, then, with the Indians in the 
purchase? 

Mr. Dickson. Not direct; no, sir. 

Mr. Bourne. Except that Mr. Smathers represented the Eastern 
Band ()f Cherokee Indians and was much interested in selling the 
property. They sold it to Boyd and were rather interested in sus- 
taining their title and contract. 

Mr. Fulton. As I imderstand, you sim])ly i)urchased the standing 
timber, and not tlie groimd? 

Mr. Dickson. Yes; the standing timber, and not the ground. 

Mr. Fulton. How many acres of land were there? 

Mr. DiCKSOX. About 30,000. 

Mr. Fulton. Have you ever estimated the amount of timber? 



RELTEE OF H. M. DICKSON ET AL. 35 

Mr, Dickson. We never put any other experts on it, but both Mr. 
Mason and myself, who have had 3-ears of experience in the timber 
business, rode in there for three days, with some other parties. We 
examined the ])roperty critically, and we estimated that the timber 
would cut 1,000 feet per acre. It was from 9 A to 20 miles away from 
the railroad, but it was not all such timber as could be marketed 
at a profit; it was like all this mountain timber. 

Mr. Fulton. Was the timber thick or scattered? 

Mr. Dickson. It was very much scattered, of course. Just in an 
offhand way we made an estimate that there would be 1 ,000 feet per 
acre, or that we would get 30,000,000 — -I think I made that state- 
ment. There was a little tract up in the corner we called 4,000 
acres. We included that, and there has been cut from the tract 
up to the present time about 14,000,000 feet. Instead of cutting, 
as I estimated, 1,000 feet to the acre, it is going to develop, when the 
contract is finished, which is now within a few months of expiration — 
it is going to develop that the property will have produced about 
16,000,000 feet, instead of 30,000.000. 

Mr. KiTCHiN. You mean 16,000,000 of merchantable lumber? 

Mr. Dickson. I mean what iuis been cut or marketed. 

Mr. KiTCiiiN. Does that mean what you have cut and sold in the 
markets ? 

Mr. Dickson. Yes. It is going to run somewhere between 16,000,000 
and 16,500,000 for the entire tract. 

Mr. KiTciiiN. The onh^ thing that let you out is the increa.se in the 
value of the timber? 

Mr. Dickson. Yes. 

Mr. Fulton. Did this tract lie so that the timber on it could be cut 
and logged to one point? 

Mr. Dickson. No. 

Mr. Fulton. You would have to move around from place to place? 

Mr. Dickson. We intended to make one setting, one mill setting, 
on Soco, and planned to put in a large band mill there and railroaci 
our logs down to the mill. Before we got into this trouble and after 
cutting off that watershed we intended to go up the Ocona Lufty 
country, another branch that came around back of the mountain, 
3^ou understand, and have two or three mill sites up that river. 

Mr. Fulton. This tract of land was mountainous, was it? 

Mr. Dickson. Yes; it was right in the Great Smoky Mountains. 

Mr. Bourne. Were there any restrictions in the contract as to the 
size and kind of trees you were permitted to cut ? 

Mr. Dickson. There were. 

Mr. Bourne. Please state what they were. 

Mr. Dickson. I do not know that I can remember, Mr. Bourne. 
I will say this, however, that the Indians' interests were guarded very 
closely in that matter, and only trees of certain size were to be cut. 

Mr. Kitchin. Wlio owns those lands? 

Mr. Bourne. This corporation — the Eastern Band of Cherokees. 

Mr. Mason. The restriction on sizes of limber to be cut under our 
contract was 22 inches in poplar, 20 inches in chestnut, 15 inches in 
oak, and for ash and all woods except box elder and hickory 12 
inches. The box elder is what they call acacia wood, the wood 
that the ark was built out of. There is very little of it. There has 
been only about two carloads cut on the tract. 



36 RELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. I think those are the correct sizes. 

Mr. KiTCHiN. You were to cut no timber under those sizes? 

Mr. Dickson. No. We could not cut timber under those sizes. 

Mr. Fulton. Now let us get to the next item. 

Mr. Dickson. The next item is "Expenses of H.M.Dickson to 
Asheville and return to Mattoon, $110.87.'' 

Mr. Fulton. That was before the first injunction? 

Mr. Dickson. Yes, sir. 

Mr. Fulton. And that was something like the first item? 

Mr. Dickson. Yes, sir. 

Mr. Fulton. All right. Now give us the next one. 

Mr. Dickson. W. T. Mason, "Expenses of W. T. Mason, two trips 
to Washington, one in June and one in Jidy, 1S94." That was in 
the same action before the Department, and looking after our fences 
in the matter. That was before the first injunction. That was $100. 

Mr. Fulton. The next. 

Mr. Dickson. "Loss of H. M. Dickson's time from the first of 
March, 1894, until the organization, January 15, 1895, $1,750." 

Mr. Fulton. That was followed by the first injunction? 

Mr. Dickson. You see, this first injunction was filed against us — 
when ? 

Mr. Bourne. In October, 1894. 

Mr. Dickson. A part of the period covered by this item was before 
the first injunction, in October, 1894, and a part of it after the injunc- 
tion. 

Mr. Fulton. How much before? That ought to be fixed in some 
way. 

Mr. Dickson. Seven and a half months before and three months 
after. 

Mr. Bourne. Mr. Dickson, was this loss of your time accounted a 
loss by reason of the fact that tlie (lovernment afterwards interfered 
with you, and the work that you did at this time was absolutely worth- 
less? I mean, did it turn out to be of no benefit to you in this trans- 
action ? 

Mr. Dickson. A large portion of it, yes; but I can not answer that 
positively from the fact that I do not know. Some of the work I did 
during that time might have had to be done later. 

Mr. Bourne. I will ask you what your time was reasonably worth? 

Mr. Dickson. My time was reasonably worth $2,500 a year. 

Mr. Bourne. Did you charge anything like that in the itemized 
statement of damages? 

Mr. Dickson. No, sir. I have only charged $1,750. 

Mr. Fulton. What were you doing during that time? 

Mr. Dickson. Nothing. You see, 1 was suspended between heaven 
and earth during most of that time, out of business in Illinois, and 
waiting to move my family, and on expense. 

Mr. Fulton. What position did you occu])y in this company? 
Was it a corporation or a company? 

Mr. Dickson. At this time it was a company, Mr. Mason and I 
together; and afterwards we incorporated the Dickson-Mason Lumber 
Company. 

Mr. Fi'LTON. What was your position in it and salary? 

Mr. Dickson. Mr. Mason and I, owning the entire capital stock, 
we said we would consider $1,800 a year apiece the salary account. 



BELIEF OF H. M. DICKSON ET AL. 37 

Of course we charged what we needed to hve on, and charged it to 
ourselves individually. 

Mr. KiTCHiN. Was it understood, and did you give your entire 
time, both of you, to this work? 

Mr. Dickson. You will find in the next item, Mr. Kitchin, that 
Mr. Mason did not give his whole time, and, consequently, he is given 
only a portion of his salary; but I did give my entire time. 

Mr. Kitchin. Was it understood that you would give vour time, 
and clid you give your time '( 

Mr. Dickson. Yes; I did no other business that entire year. 

Mr. Fulton. After the injunction was dissolved, or rather, after 
the contract was approved by the ^Secretary of the Interior, then you 
went to work operating this plant? 

Mr. Dickson. Yes, sir. 

Mr. Fulton. About when was that? 

Mr. Dickson. It was approved in the latter part of August, 1898. 
, The period covered by this salary item, you understand, Mr. Fulton, 
was way prior to this time. 

Mr. Fulton. You did not charge for your time during all that 
period ? 

Mr. Dickson. No, sir. 

Mr. Fulton. Why not? 

Mr. Dickson. I suppose because we were too modest, Mr. Fulton. 
A later item will fully explain how I charged for my time, in estimat- 
ing damages on that account. If you will wait a moment until 
we come to that item, you will find the matter fully explained. 

Mr. Fulton. All right. 

Mr. Dickson. The next item is " W. T. Mason's lost time during the 
year, 1894, at $833.35." 

Mr. Kitchin. Was this before the first injunction? 

Mr. Dickson. Yes; this item was before the first injunction. 

Mr. Kitchin. When you went back to the operation of your plant 
and the cutting of the timber after the ratification of the contract 
by the Interior Department, did not your company get the benefit 
of your services rendered before the first injunction? 

Mr. Dickson. I do not think so, Mr. Kitchin. It was absolutely 
a loss of the whole thing. 

Mr. Ft^LTON. During that time for which he makes claim for eight 
hundred and some odd dollars, he was doing nothing at all? 

Mr. Dickson. He was attending to his business in Illinois a por- 
tion of the time and that is why he did not put in for full time. 

Mr. Kitchin. How much time did he spend in this timber business 
in Buncombe County? 

Mr. Dickson. I suppose about half of his time. 

Mr. Fulton. In other words, you are not charging so much for 
his services as you are for the loss of what he did do? In other 
words, he must have done some work there when the injunction 
came up, and you lost the benefit of that work? 

Mr. Dickson. Yes. 

Mr. Fulton. "Wliat is the nature of that work? 

^Ir. Dickson. A little of everything, Mr. Fulton. I do not know 
that I can specify just what it was. Mr. Mason was a partner. 

Mr. Kitchin. I understood a while ago that your services charged 
there were rendered after the first injunction and during tlie time 
vou were thrown out of work then. 



38 RELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. No; yoii are mistaken. 

Mr. KiTCiiix. It was before? 

^Ir. Dickson. Yes; it was before and after. 

^Ir. Bourne. It was partly before and partly after. 

Mr. Dickson. The reason it was put in in this way, gentlemen, is 
the fact that we incorporated at that time, January 15, 1895, wliereas 
we had been opera tiiio; as a partnersliip prior to that time. 

Mr. Bourne. In order to clear this matter up, let me interpose 
right there and say that this item covering not only the services 
rendered before the fu"st injunction, but also services rendered after 
this injunction — this item includes an allowance for salaries up to 
January, 1895? 

Mr. Dickson. Yes; to January 15, 1895. 

Mr. Bourne. And the first injunction was serA^ed in October, 1894? 

Mr. Dickson. Yes. 

Mr. Bourne. And it includes services rendered both before and 
after the service of the first injunction? * 

Mr. Dickson. Yes. 

Mr. Fulton. During the time for which jou charged for services, 
what did you do ? 

Mr. Dickson. I had general management of the business. I went 
down there, back and forth, and spent probably half of my time. 

Mr. Fulton. Outside of all buildings and overseeing the building 
of these temporary roads and ways, what, if an3'thing else, was done 
by you or any member of your company? 

Mr. Dickson. I had the general management of our business. 
Mason and I were perfecting its organization on a large scale, in 
order to develop this property to the best advantage, making con- 
tracts for loggino; and sawing, buying supplies, and doing everything 
to promote the business. We were doing this during a part of this 
period. 

Mr. KiTCHiN. You had some of the temporary buildings put up? 

Mr. Dickson. Yes, and we were preparing for other buildings also. 

Mr. Fulton. I understand you are not charging your salary dur- 
ing the time you were working at your other business? 

Mr. Dickson. No. 

Mr. Fulton. But you are charging for the work or services which 
you rendered from which you had no benefit afterwards ? 

Mr. Dickson. Yes. 

Mr. FiTLTON. Now, I am trying to find out what you did that you 
lost; what you did at that time which was of benefit to your com- 

Eany and which afterwards you were unable to avail yourselves of 
y reason of this injunction? 

Mr. Bourne. Mr. Dickson, do 3^()u recall when the (irst injunction 
was dissolved? 

Mr. Dickson. It was in November, 1894. 

Mr. Bourne. Now, Mr. Dickson, I would like to kuow if that 
period you charge for there does not cover from November until 
the mi(idl(> of January, and if you were not constantly engaged in 
making contracts for the development of. this pro))erty, and the |nn-- 
chase of machinery and supplies of all sorts, and getting ready for 
this develo|)ment? 

Mr. Dickson. Yes, sure. 

Mr. KiTCHiN. What became of this machinery^ Did you use 
that machinery afterwards? 



RET.IKF OF JI. M. DICKSON F.T AL. 39 

Mr. Dickson. We used some of it. Some of it we liad to sell, 
and some of it we had to lose. 

Mr. KiTCHiN. Did you have to sell it at a loss^ 

Mr. Dickson. Yes. 

Mr. Bourne. He charges uj) the loss. 

Mr. Dickson. The point 1 wanted to get to on Mr. Fulton's ques- 
tion was this: You see, from the time the injunction was dissolved 
until January 15, was the time we got into this trouble, because we 
had then spread ourselves out over the entire country, expecting 
to go right to work. Those were the most active months in our 
whole organization. That was after the first injunction was dis- 
solved, and we thought we were free and clear, and I immediately 
packed my goods and with my family moved to Ashevjlle, and 
went on the property and began operations. 

Mr. Bdurne. And made contracts? 

Mr. Dickson. Yes; and not only made contracts, but cut down 
timber for all the construction work for all our buildings, and the 
trainroads, and all that kind of thing. 

Mr. Fulton. Now, the next item. 

Mr. Dickson. The next item is "Interest on railroad e((uipment, 
$2,650 for nine months, $119.25." 

Mr. Fulton. Explain that. 

Mr. Dickson. After this first injunction was dissolved I bought 
this railroad equipment — locomotives, cars, and rails— expecting to 
operate my tramroad in the woods there. The equipment arrived 
on the sidetrack after the Government had stopped our work. It 
was paid for. It lay there for nine months. 

Mr. KiTCHiN. Where did it come from? 

Mr. Dickson. From Bay City, Mich. After nine months' lying 
there we succeeded in disposing of the railroad eciuipment at 12,650, 
and charged nine months' interest on that $2,650. 

Mr. Fulton. What was the original cost of the railroad equipment? 

Mr. Dickson. We practically got cost for it. Two thousand six 
hundred and fifty dollars was practically w^hat it cost us. 

Mr. Fulton. What are you out? 

Mr. Dickson. The interest for nine months. 

Mr. Kitchin. Did you make any profit on it when you sold it? 

Mr. Dickson. Not a dollar. 

Mr. Fui.ton. In other words, you were charging for what would 
have been the probable benefit for you if you had gone on? 

Mr. Dickson. Exactly. 

Mr. Bourne. You sold the rails? 

Mr. Dickson. Yes; the whole thing for $2,650. 

Mr. Bourne. Does that itemized statement include any cost you 
were put to m going to Bay City to make this })urchase? 

Mr. Dickson. No, sir. 

Mr. Kitchin. Does it include the freio:ht? 

Mr. Dickson. Yes. I paid $1,000 for the engine at Bay City, 
Mich. I remember the engine; I do not remember amount paiil for 
the cars. The engine was tlie only thing we got out on. The freight 
bill was enormous. 

Mr. Kitchin. The total amount was $2,650? 

Mr. Dickson. Yes, sir; and nothing was charged f(»r looking it up, 
or purchasing it, or anything of that kind. 

Mr. Fulton. Now, the next item. 



40 RELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. The next item is, ''Paid Indians on leased ground, 
$60." That was a total loss. We had an Indian tear down his 
shack where we were going to put this mill, and we paid him $20 a 
year for this ground where we were going to put the sawmill. 

Mr. BouKNE. What was that leased for? 

Mr. Dickson. For the purpose of erecting a sawmill and comnus- 
sary building? 

Mr. Fulton. In this contract did you have the right to use the 
ground for the erection of buildings? 

Mr. Dickson. You see, the Indians owned or claimed to own, or 
had been allotted out of the corporation, certain little pieces of land 
for their individual use. 

Mr. KiTCHiN. That piece of land was not included in your con- 
tract? 

Mr. Dickson. Our contract provided that if we should damage 
any of these little cropping places that the Indians had, that was a 
matter that we had to adjust between ourselves and them. We had 
no possible way of locating our mill at the advantageous point we 
wanted to locate it without getting this old Indian out of the -way, 
so tliat we had to buy him out. 

Mr. Fulton. You paid him $60 ? 

Mr. Dickson. Yes; we paid him $60. 

The next is " Interest on improvements, timber, and so forth, 
148,000 feet at $6 per 1,000 for three years." 

Mr. Fulton. What is the total? 

Mr. Dickson. One hundred and fifty-nine dollars and eighty-four 
cents. When the original injunction was dissolved, we immediately 
entered into a contract for the purchase of a large band mill in Cin- 
cinnati, and I immediately let a contract with a party to saw the 
necessary framing timber out of hemlock for the erection of all our 
buildings and for the erection of this band sawmill. The small 
sawmill that I had the man under contract with to saw material 
for the building had gotten well under waj^, and he had got out 
148,01)0 feet of lumber for our various buildings, and after we were 
permitted to go on with our work again we made use of this 148,000 
feet of timber in our buildings and improvements there, so that 
we thought it was only fair to charge for the interest on what w.e 
had put into tljat for that length of time and no charge for the 
material it.self. 

Mr. Fulton. I understand. 

Mr. Dickson. The next is " Money paid hands in ]\larch. April, 
May, and June, 1895." 

Mr. KiTCHiN. Explain that. 

Mr. Fulton. Was that after the injunction? 

Mr. Dickson. That was after the first injunction was dissolved. 

Mr. Fulton. This injunction was dissolved in November, 1894? 

Mr. Dickson. Yes, but this work was done in March, Aj^ril, May, 
and June. It was while the second injunction was peiuling, 1 think, 
and it was money that we had to expend to take care of stuff that we 
had on the grouhd. For instance, as I tell you, we had this mill 
down there that cut this lumber, and we had a commissary building 
two-thirds (•omj)leted and lumber scattered all around for that. It 
was money we j)aid out protecting tiie property we had in there 
durinir these months. 



RELIEF OF H. M. DICKSON ET AL. 41 

Mr. Fulton. How much was it? 

Mr. Dickson. One hundred and twenty-one dollars and two cents. 

Mr. Fulton. Would you not have had to have this service per- 
formed whether the injunction was granted or not? 

Mr. Dickson. No, sir. We were not allowed to do a thing. We 
could not do any work. 

Mr. Fulton. In what way tlid you protect it— getting it together? 

Mr. Dickson. Gettin^^ it together, and keeping some men there 
watching it, and all such things as that. We could not do any con- 
struction work at all. 

Mr. Fulton. And this expenditure would not have been necessary 
otherwise ? 

Mr. Dickson. No. We would not have had it at all. 

The next item is "Eight months' horse feed at $10 a month, $80." 
We had a horse down there that we boarded at $10 a month. There 
was eight months' time the horse did not do any service at all. 
It was simply kept in the barn and fed. I used the horse in riding 
back and forth from the mill, and used him on tiie tram car and in 
riding around over the property. 

The next item is "Damage to logs, 1,500,000 feet, approximately, 
on account of not being sawed, $4,500." 

Mr. Fulton. Now tell us about that. 

Mr. Dickson. Well, when the first injunction was nonsuited we 
immediately put a large gang of men to work cutting timber, because 
it was then in the winter months, and we wanted to get the timber 
felled. 

Mr. Kitchin. You say it was in the winter months, and you 
wanted to get the timber felled. Is that the proper time to cut 
timber ? 

Mr. Dickson. Tliey do not now pay much attention in western 
North Carolina to the time when they cut it. 

Mr. Kitchin. It makes a great deal of difference in my country. 

Mr. Dickson. They cut it right along. That is in the hard woods. 
We had been held up for a year, and we were very anxious, as our time 
was expiring. We had lifteen years in which to cut the timber oli". 
The moment we were released from the first injunction I put every 
man to work that we could handle, and we cut this timber down 
right and left. We had a superintendent, this man Hyatt, and he 
kept a log book, by which he gave us at the close of the month the 
number of logs, the size of the logs, and whether they were chestnut, 
oak, maple, or what not; the kind of timber that was in the logs. 
That is where we get these figures. That log book figured u}) about 
practically 1,500,000 feet. That was not timber felled alone, but it 
was also timber felled and cut into log lengths. 

Mr. Fulton. That was during the time from the dissolution of 
the first up until the granting of the second injunction? 

Mr. D>ickson. Yes. 

Mr. Kitchin. I understand you had a gang of men along, cutting 
trees down, and another gang cutting them up into logs? 

Mr. Dickson. Yes. 

Mr. Kitchin. And the men going on before and cutting the trees 
down cut a great many more thousand feet than the other fellows 
could cut into lengths i 



42 RELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. Yes; more than tlie other fellows: and this explains 
how we failed to put in a claim for any damage to timber in excess of 
1,500,000 feet. Hyatt's log book showed only this amount of timber 
trees felled and cut into logs. We entirely overlooked the fact that 
a great many timber trees had been cut down, but not cut into logs, 
and that these would not appear in Hyatt's log book. Our itemized 
statement of damages only covers what appears in Hyatt's log book. 

Mr. Fulton. What did you do with that timber when you went in 
there, this million and a half feet? 

Mr. Dickson. We cut it up. We figured out $3 per thousand feet 
damages. 

Mr. Bourne. I want to ask you at this point if that stiifl" was not 
exposed to the suns of two summers? 

Mr. Dickson. Yes; I think it was. 

Mr. Fulton. What was the market price of that timber, that mill- 
ion and a half feet, at the time the second injunction was granted? 

Mr. Dickson. Do you mean timber or the lumber? 

Mr. Fltlton. Lumber. 

Mr. Dickson. That is impossible to answer, because various kinds 
will bring various prices, you understand. 

Mr. Kitchin. What would it average, per thousand feet, sawed, if 
it had not stayed out in the weather, if you could have sawed it at a 
proper time after it had been cut? 

Mr. Dickson. I can only give you an estimate. I should say it 
would be worth from $12 to $14 dollars, log run, deUvered at the 
railroad. 

Mr. Kitchin. What was it worth in the condition it was? 

Mr. Dickson. We estimated it would be worth $3 a thousand feet 
less on account of the damage. 

Mr. Fulton. What did you receive for this million and a half feet 
after it was sawed ? 

Mr. Dickson. I do not know. • 

}>lr. Kitchin. What would it average in value per thousand feet? 

Mr. Bourne. Why don't you know? 

Mr. Dickson. For the reason that it was not kept as a separate 
item on our books. It was run right along with some lumber that we 
were buying that came into Wliittier, and was not kept separate. 

Mr. JiouRNE. I will ask you in that connection if you could have 
sold this damaged lumber by itself and made any profit out of it? 

Mr. Dickson. No, sir. 

Mr. Kitchin. By using it with other good timber, did that bring 
down the general price of the whole, the good and that, too? 

Mr. Dickson. It would have that cIVect; yes. 

Mr. P\'i;roN. You say you had a million and a half feet in log 
measurement? 

Mr. Dickson. Y^es; log scale. 

Mr. Fulton. Can you tell the number of feet of hnnber these same 
logs produced ? 

Mr. Dickson. Tlie superintendent, Mr. Hyatt, says there were 
about 2,000,000 feet, board measure, which he sawed out, but we 
only mention in our statement of chimages a million and a half of the 
timber that was cut into logs. Now, the cutters had gone far ahead 
and cut thousands of logs that were not included in this at all. We 
have done nothing with that oth(M-. except Mr. Hyatt says this stulf 



RELIEF OF 11. M. DICKSON ET AL. 43 

sawed out amounted to 2,000,000 feet. We could care only for 
what was on the ground. 

Mr. Fulton. What did that amount to that was felled and not cut 
into logs? 

Mr. Dickson. Our log book showed a million and a half feet cut 
into logs. There was a lot of it that was so worm-eaten that we never 
moved it off the ground; but notwithstanding that fact Mr. Hyatt 
says there were about two millions of that product, so that the residue 
must have been in the neighborhood of three-fiuarters of a million 
feet. 

Mr. Fulton. Let us follow down this million and a half feet of 
logs. You say Mr. Hyatt says that cut about 2,000,000 feet of 
lumber? 

Mr. Dickson. Yes, out of that felled timber. 

Mr. Fulton. Does that include both the logs and what was cut 
down, but not in log lengths? 

Mr. DicicsoN. Yes. 

Mr. Fulton. You think you had, of fallen timber that was not cut 
into logs, from half to three-c[uarters of a million feet that was a total 
loss? 

Mr. Dickson. No, not a total loss; a partial loss. 

Mr. Fulton. Into how much will the log scale saw^ out on the 
lumber scale ? 

Mr. Dickson. I would say it would shrink about 10 per cent. 

Mr. Fulton. You got about 2,000,000 feet of lumber? 

Mr. Dickson. Yes. 

Mr. Fulton. Is there any way to estimate the amount of this 
timber w^hich was cut dow^n but which was not cut into logs at the 
tune the second injunction was served? 

Mr. Dickson. It is impossible to estimate it exactly. But our 
log book showed a million and a half feet of timber that ha(l been felled 
and cut into logs at that time, and as Mr. H^^att shows in his affidavit 
that we actually sawed out 2,000,000 feet of lumber from the tind)er 
trees that had been cut down at the time, I estimate that of the 
timber trees that had been felled but not cut into logs at the time of 
the second injunction we nuist have used about 700,000 or 750,000 
feet. This estimate allows for shrinkage under log scale of about 10 
per cent. Now, of course, while we used the lumber produced horn 
this timber, it w%as badly damaged. In addition to the foregoing 
elements of damage to timber or lumber, there must have been 
about 500,000 feet of timber trees that were cut down and left in the 
woods — a total loss. 

Mr. Fulton. But which you used? 

Mr. Dickson. We used some of them. 

Mr. Fulton. Can you estimate how much was left there in trees 
cut down which was a total loss? 

Mr. Dickson. We can not estimate them definitelv; about 500,000 
feet. 

Mr. Kitchin. Do you know as a fact that there were many of 
them ? 

Mr. Dickson. There were thousands of feet of them. I went over 
there myself, and practically every ash log we had cut M'as ruined 
The worms liad gone into tfiem and ruined them. In a great many 
of the poplar logs, the bark being on the logs and the logs being on the 



44 RELIEF OF H. M. DICKSON ET AL. 

ground, the worms had begun working on the underside of the logs. 
The hickory we never moved a tree of. The worms ate that all up. 
As to the lynwood or basswood — if you are conversant with that, Mr. 
Fulton — it is a very soft, punky wood, and the sawmill men some- 
times say it will rot overnight. The buckeye wood is worse than the 
basswood. That was practically ruined. I can not give the percent- 
age to save my life. 

Mr. Fulton. Make an estimate from your investigations there of 
what was the number of feet of timber that was lost 

Mr. KiTCHiN. Or absolutely lost 

Mr. Bourne. Cut down and lost. 

Mr. Mason. We have not put any of that timber in. 

Mr. Dickson. I can only give you an estimate of this, because I 
have no possible way to get down to the facts and figures of it. My 
best judgment would be that there was at least 500,000 feet of logs 
that were a total loss. 

Mr. Kitchin. Have you put that in? 

Mr. Dickson. No, sir; not a dollar of it; for the reasons herein- 
before given in connection with Neyatt's log book. 

Mr. Fulton. At that time what M^ould be the reasonable value of 
that 500,000 feet? 

Mr. Dickson. At that time the reasonable value per thousand feet, 
as they lay there, cut down, I would say $3 a thousand. The timber 
cost us, as we have demonstrated it by having operated the prop- 
erty, — the standing timber cost over $1.50 a thousand feet, to say 
nothing about cutting it into logs. 

Mr. Fulton. Now how much was this 2,000,000 feet of lumber 
worth at the time you sawed it? 

Mr. Dickson. About $12 per 1,000 feet at the railroad track. 

Mr. Kitchin. What was it worth at that time, in your judgment, 
per thousand feet in the condition in which it Vv^as? 

Mr. Dickson. About $12 per 1,000 feet at the railroad track. 

Mr. Bourne. After it had been damaged ? 

Mr. Dickson. Yes. 

Mr. Kitchin. What proportion of the logs would you lose — 10, or 
15, or 20 per cent? 

Mr. Dickson. I think safely 15 per cent. That is, of logs that we 
took in in a damaged condition. I do not mean stuff that we left 
in the woods and which did not come in at all. /Fhe lumbermen in 
certain localities are in the habit of putting logs in the river, these 
logs being in the stream for two or three years, waiting high water 
to bring them down; and they consider that such logs lose their sap, 
and it is estimated that they lose 15 ])er cent of their prodiu-t. That 
is the way I get at it. 

Mr. FcF/i'ON. The measure of damages is the dill'erence between 
the fair market value of this property at the time you stopped work 
and what it was when you resumed it? 

Mr. Dickson. You can see from what 1 have told you, Mr. Fulton, 
that we are very conservative when we say $3 less a thousand on a 
million and a half feet. I feel the same as though I was on the wit- 
ness stand under oath, and 1 do not want to make any statements at 
random in the matter. 

Mr. Fii/roN. What 1 was trying to get at is this: ^'our t(>stiinony 
is rcalK' a coiiclusioii. It would be clearer if it could be |)ut into such 



RELIEF OF H. M. DICKSON ET AL. 45 

shape that the committee could draw its own conclusion. If you 
give the value at one time and tlie value at another time, then we 
could estimate the damages. 

Mr. Dickson. Say $3 a thousand feet on the 2,000,000 feet, 
mentioned by W. S. Hyatt. 

Mr. BoLKNE. He wants you to give what 'that stuff was worth, 
the fair market value of it, if you had been permitted, to saw it out, 
and then what it was worth, say, on the average, per thousantl feet 
in its damaged condition. That is, under your theory it would be 
$3 less than its original value. 

Mr. Dickson. I say it would have been worth $15 a thousand if it 
had been sawed in its natural condition, antl it was only worth S12 
a thousand in the shape it came in; a difference of S3 a thousand feet. 

Mr. KiTCHix. That would be $3 difference? 

Mr. Dickson. Yes. 

Mr. KiTCHiN. Where is Mr. Hyatt? 

Mr. Dickson. He is working for Mr. Mason yet. 

Mr. KiTCHiN. Has he given an affidavit in this matter? 

Mr. Dickson. Yes. 



proceedings of third session of subcommittee. 

Committee on Claims, 
House of Representatives, 

Saturday, February 29, 1908. 
The subcommittee met at 3 o'clock p. m., Hon. Claude Kitchin in 
the chair. 

STATEMENT OF MR. HARVEY M. DICKSON— Continued. 

Mr. Kitchin. 1 want to ask you one question before you go on. 
How did it come about that you went back in there to get that timber 
after the Government had gotten out an injunction, and when was it? 

Mr. Dickson. The court, with the consent of the Government, 
allowed us to go in there under bond in order to save the felled timber. 
Both realized that they were jeopardizing this by letting it lie there 
rotting, and after something over a year, when the case came up in 
Asheville, they permitted us, under a $2,500 bond, to go in and take 
up this down timber that we had cut ; that is wdiat w^e went in there 
for, pending the final settlement. 

Mr. Kitchin. You do not remember the amount of the bond? 

Mr. Dickson. I think it was $2,500; I am quite sure of it. 

Mr. Kitchin. They would not let you go in there until after a year? 

Mr. Dickson. I think it was something over a year, Mr. Kitchin; I 
am not positive about that. 

]\Ii'. Bourne. That is my recollection of it, but the amount of that 
bond I do not recollect. 

Mr. Dickson. I think it was $2,500, but I do not recall the exact 
amount. 

Mr. Kitchin. If they had so much timber on there — 2,000,000 feet 
of timber — why did they reqiure such a little bond? 

Mr. Dickson. I do not know that they knew that there was so 
much down there. 

Mr. Kitchin. Twenty-five hundred dollars w^ould probably cover 
the stumpage as it stood? 



46 RELIEF OF H. M. DICKSON ET AL. 

Air. Dickson. I suppose that was what thev were figuring on. I 
can not tell you why the bond was placed at that sum. 

Mr. KiTCiiiN. I presume that was only to cover the stumpage that 
you had already cut. 

Mr. Dickson. I know the bond was made m Asheville, and I think 
it was $2,500. 

Mr. Bourne. My own impression is it was $3,000. Mr. Bourne 
found by examining the record on appeal in case of United States v. 
Boyd, attached to the memorial, that this bond was in the sum of 
$3,000. 

Mr. Dickson. It is a matter of some years ago, and something I 
have not thought of. 

Mr. KiTCHiN. I just wanted to know why you went on there at all, 
and if j^ou went on, when you went on? 

Mr. Fulton. He explained that this morning. 

Mr. Bourne. We tried to go on the boundar}'- before, but the 
court and Government would not let us. 

Mr. Dickson. The next item is, ''Loss of expense making first 
attempt at work which led to first injunction, cutting export logs, 
$150." 

Mr. Bourne. How many feet? 

Mr. Dickson. As near as I can remember there were from 25,000 
to 30,000 feet of logs cut. 

Mr. Kitciiin. Is that included in your list? 

Mr. Dickson. No, sir. These logs were cut at entirely different 
places, just where we could pick out an export tree. 

Mr. Fulton. What was done with them? 

Mr. Dickson. There was nothing done with them. We got one 
log to the railroad when the injunction was served. 

Mr. Kitciiin. What was the nature of the timber? 

Mr. Dickson. All poplar. We got one log to the railroad, and if 
it has not been split for firewood, it is there to-day. 

Mr. Kitciiin. Was that timber a different class of timber from the 
other timber you cut? 

Mr. Dickson. Yes; in that it was liigher grade timber on account 
of it being large export logs. These logs, you understand, were not to 
be sawed up but were to be sliipped as logs. You see we had no mill 
at that time; we did not want to go to any great expense; we had 
gone to the expense of making some roads, and therefore we decided 
that we wordd take out a few thousand feet of poplar logs for export, 
and that is really what caused the Government to begin its suit: they 
did not stop us from })uilding roads. 

Mr. Fulton. Were tliese export logs that were cut just left lying 
there ? 

Mr. Dickson. Just left lying there, yes, sir; and this item covers 
simply the expense incurred in the cutting of the logs and not the 
value of the logs themselves. The logs, a great many of them, were 
lu^wed octagon shape. 

Mr. Boi'RNi:. What was the value of these logs in tlieir condition 
at this time? 

Mr. Dickson. Ten dollars ])cr tliousand feet, I sliould say. 

Mr. Fi'LTox. And you got nothing for thenW 

Mr. Dickson, .\otliini:: wliatever. I think thev were all lost. 



RELIEF OF H. M. DICKSON ET AL. 47 

The next item we have is entitled "J. N. Capps' loss, actual cash 
paid as damages, SI, 491." 

Mr. KiTCiiiN. W hy should the Government be held responsible for 
that? 

Mr. Dickson. Because it is a direct damage. After the first injunc- 
tion was dissolved we bought a S10,0()() band mill in Cincinnati. We 
entered into a contract immediately, then, after the first injunction 
was dissolved, with a man b}" the name of J. N. Capps, in which he was 
to supply a 20,000 foot band mill, or rather we were to assist him in 
getting a band mill, and he was to cut these logs into lum})er at S2.50 
per thousand feet; that was the contract between us. Of course you 
well know that a band mill is not a movable mill, not a portable mill; 
it is a permanent mill. 

Mr. Bourne. Why did you get a band mill? 

Mr. Dickson. Because there is a saving of aV)()ut 20 per cent. 

Mr. Bourne. And you expected to develop this property on a 
large scale? 

Mr. Dickson. Yes, we intended to develop this pro})erty on a 
large scale, and there is a saving of about 20 per cent between a band 
and a circular mill; and we bought this mill, or rather Mr. Capps 
bought this mill with our assistance, in Cincinnati. The Govern- 
ment begun its second injunction suit against us, after this mill had 
been prepared for shipment, and just when we were on the point ot 
having it shipped to North Carolina. We were under contract to 
take the mill, and hence we had to go to Cincinnati, where the mill 
was all boxed ready for shipment. I think there was a thousand 
dollars paid on the mill. We had to go to Cincinnati and make a 
deal with those people b}' which we could get a small, portable jnill, 
and this $1,491 item of damages consists of $1,000 paid to Capps by 
us, for loss of time under his contract with us and of $491 which we 
paid the Cincinnati people for boxing and holding the band mill and 
to release Capps and ourselves from the contract to take it. We had 
to agree to pay these sums, and we paid them, in ortler to get Capps 
to release us from his claim for damages against us, on account of the 
breach on our part of our sawing contract with Imn. This breach was 
due (hrectly and solely to the action of the Government. 

Mr. KiTCHiN. How long did that band mill stay boxed up and 
hung up in Cincinnati, after it was boxed up ready for shipment? 

Mr. DiCKSON: Seven or eight months. 

Mr. Fulton. Did you enter into a contract with the Cincinnati 
company for the purchase of this mill, or did "Sir. Capps? 

Mr. Dickson. Mr. Capps. 

Mr. KiTCHiN. rtlr. Capps entered into the contract? 

Mr. Dickson. Yes, but we were parties to the contract. 

Mr. KiTCHiN. Was the contract in writing? 

Mr. Dickson. It was a regular sawmill-machinery contract, such 
as the sawmill people issue. This is my recollection. 

Mr. KiTCHiN. Did your company sign the order? 

Mr. Dickson. No; we had no company at that time. 

Mr. KiTciiiN. You just had a A^erbal understanding between you 
and Mr. Capps? 

Mr. Dickson. Yes, sir. 

Mr. KiTc 'IN. That vou would buv a mill for him? 



48 RELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. No, he was not able to carry it ahjiie; that is, lie 
was not able to put that mill in alone, and we had to assist him, and 
he was to pay lis back for the mill. 

Mr. KiTCHiN. You were to pay for it yourselves, were you ? 

Mr. Dickson. If he did not. 

Mr. KiTCHiN. How much was the purchase price of the mill? 

]\Ir. Dickson. The original price of the band mill, I tliink, was 
$10,000. 

Mr. KiTCHiN. And your agreement with ^Ir. Capps was that j'-ou 
were to advance the money for the mill or to stand good for liim ? 

Mr. Dickson. We were to stand good this way; we had to guar- 
antee the payments for the mill. 

Mr. KiTCHiN. Was any cash paid? 

Mr. Dickson. Yes; I think it was $1,000. 

Mr. KiTCHiN. You had an agreement that he was to saw the 
lumber for you ? 

Mr. Dickson. Yes, at $2.50 per thousand feet. 

]VIr. KiTCHiN. You paid him $1,000 because you were compelled 
to cancel that contract? 

Mr. Dickson. Rather than have a lawsuit with Mr. Capps we com- 
promised the matter; he, of course, was hung up by tliis injunction 
as well as we were. 

Mr. Bourne. Here is the original paper. 

Mr. KiTCHiN. Why not file that original as a part of your remarks? 

Mr. Dickson. I will file this contract of settlement between Mr. 
Capps and Mr. Mason and myself, marked 'Exhibit B," as a part 
of my testimony. 

Mr. Fulton. There was no contract in writing between you people 
and Capps? 

Mr. Dickson.- Not at that time; no, sir. 

Mr. Fulton. Was there any at any time? 

Mr. Bourne. For the sawing? 

Mr. Fulton. Yes; in regard to his sawing lumber, which was the 
cause of your having to pay him this thousand dollars ? 

Mr. Kitchin. Was that in writing? 

Mr. Fulton. What I want to know is this: The question might 
come up, Did Capps have such a contract that could be enforced 
against these people? I am not satisfied with tlie evidence yet, that 
there is any evidence in here to justify you paying this man that 
thousand dollars. The fact that you did pay it is plain, but there 
is not anything here to show that you had to pay it. 

Mr. Bourne. Mr. Dickson, did you make a contract with Mr. J. 
N. Capps in regard to sawing this timber, or any part of it, after the 
dissolution of the first injunction? Just answer categorically, yes 
or no. 

Mr. Dickson. Yes. 

Mr. Bourne. Wliat were the terms of the contract? 

Mr. DicFvsoN. The terms of the contract were that he was to put 
in a band mill that would cut 2.'),0()0 feet of lumber j)er day, we guar- 
anteemg to give him 25,000 feet of logs per day to cut; that we were 
to take the hiiiiber from the tail of the mill and pay him $2.50 per 
thousand for convertmg the logs into the lumber and delivering it at 
the tail of the mill. 



RELIEF OF H. M. DICKSON ET AL. 49 

Mr. Bourne. Do you know whether that contract was in writing 
or not ? 

Mr. Dickson. I can not say positively, but I am under the impres- 
sion that there is correspondence in tlie iiles that shows that, if not a 
contract drawn by an attorney, it was a contract in writing between 
us. T think it can be found in the files. 

Mr. KiTCHiN. Are the terms of that contract set out in this con- 
tract of settlement? 

Mr. Dickson. I think they are. 

Mr. Bourne. The substance of it. 

Mr. Dickson. I have not looked at it for ten years. 

Mr. Bourne. I will state that under the laws of North Carolina 
there is no reciuirement that sucii a contract as tliat mentioned by 
Mr. Dickson shall be in writing, ami it is enforceable whether in writ- 
ing or not if made for a valuable consideration. 

Mr. Dickson. You asked me a question, Mr. Kitchin-, whether this 
settlement sets forth the contract. I see it does; it recites almost 
exactly what I have said to you. 

Mr. Bourne. Now, Mr. Dickson, was that the best possible settle- 
ment that you could get out of Mr. Capps ? 

Mr. Dickson. Yes, sir. 

Mr. Bourne. How long were you negotiating with him for a settle- 
ment of this claim, if you recall ? 

Mr. Dickson. Perhaps three months. 

Mr. Fulton. Who finally did your sawing after you got to going? 

Mr. Dickson. Mr. Capps. 

Mr. Fulton. Did he use the same mill i. 

Mr. Dickson. He used the small mill, which was substituted for the 
band sawmill. 

Mr. Bourne. How long did he do your sawing? 

Mr. Dickson. Mr. Capps did it until he fell down, until he could 
not perform any longer. I have forgotten when he went out of there. 

Mr. Bourne. Then you employed other people? 

Mr. Dickson. Then we employed other people. 

Mr. Fulton. How long was it fi'oin the time of this second injunc- 
tion until you were able to start to work? 

Mr. Dickson. You mean from the filing of the second injunction? 

Mr. Fulton. Yes. 

Mr. Dickson. Something over a year, as I remember it. 

Mr. Bourne. I do not think you understood Mr. Fulton. [To Mr. 
Fulton.] Do you mean when he was finally allowed to go ahead after 
confirmation of the contract by the Interior Department or when he 
w^as allowed just to saw out the small portion of timber that had 
been cut down? 

Mr. Fulton. No; take the whole thing. 

Mr. Bourne. The injunction was dated the 8th day of March, 1895. 

Mr. Fulton. I remember that. 

Mr. Bourne. They were permitted to go ahead on the 26th day 
of August, 1898. 

IVIr. Fulton. Between three and four years. 

Mr. Kitchin. That is, in fidl operation? 

Mr. Dickson. Yes, in full operation; we were given the property 
at that time. 

34540—08 4 



50 RELIEF OP H. M. DICKSON ET AL. 

Mr. .Fulton. What was the $491 for, now? 

Mr. Dickson. That was a difTerence that had to be paid the people 
in Cincinnati as the cost of boxing and getting ready for shipment 
the band mill that had been bought and was, as I told you, boxed 
ready for shipment. 

Mr. Fulton. And they cliarged you $491 for boxing it ? 

Mr. Dickson. For boxing it and holding it the length of time they 
did, and to release us from the contract to take it. 

Mr. Fulton. That is something you had to give them to get them 
to cancel the contract? 

Mr. Dickson. That is the actual cash we paid them for the can- 
cellation of the contract. Otherwise they could have forced us to 
perform on this big band contract, which we were in no position to do. 

Mr. KiTCHiN. Did you ever afterwards put in the band mill? 

Mr. Dickson. No, sir. 

Mr. Fulton. Did you make a direct guaranty to the Cincinnati 
people that you would pay this? 

Mr. Dickson. We did pay it. 

Mr. Fulton. I mean pay the price of that band mill; was any 
contract existing between you and the Cincinnati people ? 

Mr. Dickson. Only as guarantors. 

Mr. Fulton. Did 3'ou make this guaranty to them, or did you 
make it to this man Capps? 

Mr. Dickson. We made it to them for this man Capps's benefit. 

Mr. Fulton. Then, in other words, you paid Capps $491? 

Mr. Dickson. Exactly, just as it appears here; that it was $491 
loss on the Capps transaction, and we had to pa}^ it, because we had 
guaranteed the band-mill contract and, besides, we were liable to 
Capps on our contract with him. 

Mr. Fulton. I just wanted to see whether there was any contract 
existing between vou and the manufacturer; that is all. 

Mr. Dickson, the interest on the $1,491 is $178.81. 

Mr. KiTCHiN. How does that come in in the damages; for how 
long is that? 

Mr. Dickson. That is up to the date of the confirmation, until we 
got the property. 

Mr. Bourne. He was out the interest on that money he had paid 
out. 

Mr. KiTciiiN. That is your grounds for claiming it? 

Mr. Fulton. In other words, if you had had that money all the 
time, up until you })ought another mill, the use of that money would 
have been worth that much? 

Mr. Dickson. Six per cent interest, or $178.81. 

Mr. Bourne. You see, he did not have the use of any mill at all, 
and lie absolutely lost the interest on his paj'ment; he did not have 
the money or the use of the mill either. 

Mr. Dickson. The next is "Expense of H. M. D." — that is my- 
self — "to Cincinnati to change mills, $50." 

Mr. Fulton. That was on this same matter? 

Mr. Dickson. The same ])rop()sition, exactly, 

Mr. Bourne. How nuich is that interest? 

Mr. Dickson. Nine dollars and seventy-five cents interest. 

Mr. Fulton. Nine dollars and seventy-five cents on the $50? 



RELIEF OF H. M. DICKSON ET AL, 51 

Mr. Dickson. On the $50 for the length of time it stood. 

"Attorney's fees, $1,500." Mr. Bourne can tell you more about 
that than I can. 

JVlr. Bourne. All I can say is they were very reasonable. 

Mr. KiTCHiN. Have vou actually paid out $1,500 for attorney's 
fees? 

Mr. Dickson. Yes, sir; a great deal more than that. 

Mr. Bourne. You see, this matter was in the United States circuit 
court. We had to travel from vStatesville to Asheville and from 
Asheville to Greensboro, or anywhere the other side wanted to take 
it up. The United States attorney was going around to the courts 
of the district, and whenever he wanted to take it up at one point 
we had to go there, and that includes not one cent of the expenses of 
liis attorney. 

Mr. KiTCHiN. So you say you have actually paid out $1,500 by 
virtue of these injunction suits of the Government for lawyers' fees? 

Mr. Dickson. More than that. 
. Mr. KiTCHiN. Exclusive of expenses? 

Mr. Dickson. Yes, sir. 

Mr. KiTCHiN. Of course all of that will be a question with the 
committee, whether they will allow any of these. 

Mr. Bourne. It is all a matter of grace; we can not have a legal 
claim against the sovereign ; there is no such thing, but the allowance 
of anything is a matter of grace on the part of the Government. 

Mr. Dickson. The last item on the list is "Loss on account of 
salaries paid, office rent, clerk hire, etc., from January 15, 1895, until 
date of confirmation, August, 1898, $7,500." I want to make an 
explanation there, Mr. Fulton. The actual salaries and expenses, 
ofnce rent, and one man, whom we kept under contract in the office, 
hired by the year, would have and did amount to about $15,000 
during those years ; but we did not put in all of those expenses, for the 
reason that we attempted to do some business outside while we were 
hung up during this time. We would buy and sell lumber, and we 
made a portion of our expenses, though our capital was completely 
tied up, you understand, in this proposition. We could not do much 
business; we could not bu}^ large stocks or handle large stocks, but 
we could buy from hand to mouth a few carloads of lumber here and 
there and sell them, and consequently we were able to make only about 
half the expenses for that period of time. 

Mr. Fulton. How much did you have actually invested in cash 
from the time of the granting of the second injunction up till August, 
1898? That is, what was the total sum that you had? 

Mr. Dickson. We had forty-six thousand and some odd dollars. 

Mr. Fulton. And during that time did it earn you anything? 

Mr. Dickson. No, sir; it was tied up; we did not make a living. 
The facts are actually stated. 

Mr. Fulton. At the time this second injunction ^^'as granted, in 
March, 1895, what was the extent of the arrangements that you had 
made for the purpose of cutting and sawing this timber; that is, what 
capacity, how much could you cut out, say, a day or a month, with 
the force that you had employed at that time? 

Mr. Dickson. Twenty-five thousand feet per day; that was our 
contract with this man Capps — to produce 25,000 feet. 



52 RELIEF OF H. M. DICKSON ET AL. 

Mr. Fulton. And you had the material and the machinery and 
everything installed there in March, 1895, so you could have pro- 
duced it^ 

Mr. Dickson. We did not have it all there; we had it on the way 
there. 

Mr, Fulton. How much did you have there? 

Mr. Dickson. We had our engine and cars, rails, and our commis- 
sar}^ goods, and the machinery ready to come forward from Cincinnati. 

Mr^ Fulton. You had not really commenced sawing? 

Mr. Dickson. No; though we had already logged on to the yard 
several thousand feet of logs. But in order to make this advanta- 
geous contract with Mr. Capps, for sawing at $2.50 per thousand and 
deHvering the lumber at the tail of the mill, we had to make him a 
guarantee that we would give him 25,000 feet of logs per day, and I 
think this is all pertinent. I had gone — I say "I" because I went 
there before Mr. Mason did — and made contracts with four separate 
and distinct logging contractors, so that the four combined contracts, 
you understand, would supply us with our 25,000 feet of logs per day. 

Mr. Fulton. What was the nature of the contracts you made with 
these logging companies? 

Mr. Dickson. We had cut the timber ourselves, you understand, 
or felled the trees ourselves, and cut the trees into logs. They fur- 
nished their own stock and supphes, and we paid them various 
prices, according to the distance that they had to haul the logs. 

Mr. Fulton. They were the people who did the cutting? 

Mr. Dickson. No, sir. 

Mr. Fulton. They never did any cutting? 

Mr. Dickson. No, sir. 

Mr. Fulton. Did they ever hold you for an}^ damages? 

Mr. Dickson. No, sir; because we held them off and gave them 
back their contracts, when we were released, to go ahead again. 
Those contracts ranged from S6 to $4.50 per thousand feet. 

Mr. KiTCiiiN. To haul the logs to the sawmill? 

Mr. Dickson. Logs, yes; but no cutting. 

Mr. KiTCHiN. Had you gone to any expense in the way of building 
there? 

Mr. Dickson. Oh, yes. You will notice a charge of 148,000 feet; 
I w^ent over that. We had gone to the expense of installing a small 
mill to saw the lum])er for these buildings. It was a perfectly 
barren waste, and we had to put every building up for the men we 
employed, from the boarding house to the sawmill, and I might say 
we had these buildings nearly completed when this injunction was 
laid on us. 

Mr. Fulton. What is the amount of your claim? 

Mr. Dickson. $27,873.55. 

Mr. Fulton. What is the legal rate of interest in your State? 

Mr. Bourne. Six per cent; at that time the contract rate was 8 
per cent. The legal rate was 6, but that was changed in 1895. 

Mr. KiTciiiN. I do not understand exactly about that $7,000 you 
had to pay there to servants and labor during that time. 
Mr. Boi'RKE. That includes their own salaries. 
Mr. Fulton. How much of that last item was for your salaries and 
how much was for salaries of other people; can you figure that out? 



RELIEF OF H. M. DICKSON ET AL. ' 53 

Mr. Dickson. Yes; I can tell 3^011 very closely. There was $1,800 
a year to each of us, Mr. Mason and myself, or S3, 600 a year. 

Mr. Fulton. That was for three years, was it not? 

Mr. Dickson. That was for about three and one-half years. The 
man we had employed by the year got $900 a year, our olhce rent was 
$150 a year, so that brought it up to $4,650 a year. There were 
three and one-half years, making $16,275. This contains no inci- 
dentals, such as telephone rent, and so forth. We simply claim in this 
item $7,500, while the actual expense per annum that we were 
under was $4,650 for Mr. Mason, myself, oriice rent, and one clerk. 

Mr. KiTCHiN. That includes, then, these items for the three and 
one-half years ? 

Mr. Dickson. The whole sum total does; yes, sir. 

Mr. KiTCHiN. The sum total for three and one-half years would 
be how much? 

Mr. Dickson. Sixteen thousand two hundretl and seventy-five 
dollars, and we have claimed for only $7,500, so it is less than half, 
and this allows ^Ir. Mason and me less than half salary. 

Mr. Kitchin. In fact, you cut your salaries about half in the claim 
as presented; why did you cut them in half? Were you doing any- 
thing else? 

Mr. Dickson. Just what I explained — that we were trying to do 
something outside during that time, and did do some little business. 

Mr. Kitchin. Did it take you half your time to do that outside 
work ? 

Mr. Dickson. No; we were not employed half the time; in fact, we 
lay idle 90 per cent of the time ; we were tied, hand and foot ; we had 
no money to do anything with. 

Mr. Mason. Let me call your attention to the fact that we were 
getting out this 2,000,000 feet of lumber at that time. 

Mr. Kitchin. Was it necessarv for vou to keep this $900 clerk 
there? 

Mr. Dickson. Yes, sir. 

Mr. Kitchin. Even if you did not have any other kind of business; 
why? 

Mr. Dickson. Because we had him hired by the year. 

I^Ir. Kitchin. Why was it necessary, if you were not doing any- 
thing else, to keep him two years? 

Mr. Dickson. Air. Kitchin, we were expecting every minute to have 
this thing settled and to go ahead with om- business. He was very 
capable and was a competent man in every respect, and a man we had 
drilled up to the point, and we thought that we could not replace him, 
and as an evidence that we could not replace him, we ke])t him up 
to wathin a year of our separation. 

Mr. Fulton, Then you had liim at $900 for three antl one-half 
years ? 

Mr. Dickson. Yes; we had him for three and one-half years; 
but we charged half of his salary to outsitle business. 

Mr. Fulton. Wliat other expenses were there to keep up during 
this time 3^ou were idle? 

Mr. Dickson. There was a large expense that is not charged up 
in om' itemized statement. We kept this man Hyatt, whose aill- 
davit is there, on pay, I think, at $40 a month. 

Mr. Fulton. What were his duties? 



54 BELIEF OF H. M. DICKSON ET AL. 

Mr. Dickson. We had to have somebody there to w:atch over our 
stuff. We had this lumber scattered, that was being cut; we had 
the mill and other buildings partially completed; and a mill sawing 
the damaged logs, all of which was looked after by him. 

Mr. Fulton. Could not the clerk do that? 

Mr. Dickson. ^Ir. Fulton, this was 60 miles away from our office; 
our office was in Asheville and our plant was on Soco Creek, in Jackson 
County. 

Mr. Fulton. Were there any other expenses? 

Mr. Dickson. As I say, we made no charge whatever for Mr. 
Hyatt's time. 

Mr. Fulton. As I understand, this plant lay practically idle for 
three years and you got nothing out of it ? 

Mr. Dickson. That is exactly it. 

Mr. Fulton. In addition to this watchman and this clerk, tell 
what expense 5^011 were out in necessarily keeping up the plant during 
that time, if there are any. 

Mr. Dickson. Of course, there are always expenses in a case of that 
kind. There was a big item of expense for this man Hyatt. We had 
him employed constantly at $40 per month. After we were allowed 
to go in temporarily and saw up the logs and felled trees we made a 
settlement with Mr. Hyatt, and he did not charge us full time. I 
think he charged us on the basis of about $30 a month instead of $40. 
I know there was a little came back to us out of that. 

Mr. Bourne. You mentioned that you had a commissary and a 
stock of goods down there on this property. I would like to know if 
you made the purchase of these goods after the dissolution of the first 
injunction and before the service of the second ? 

Mr. Dickson. I did. 

Mr. Bourne. How much did you have invested? 

Mr. Dickson. In round numbers, .$3,500. 

Mr. Bourne. Were you able to dispose of that stock of goods there 
after the service of the second injunction? 

Mr. Dickson. We were not. 

Mr. Bourne. Why? 

Mr. Dickson. We did not have the men, sufficient men employed, 
to use it. 

Mr. Bourne. You did not have any men employed? 

Mr. Dickson. Only while we were cutting out this down timber. 

Mr. Bourne. What disposition did you make of that stock of 
goods ? 

Mr. Dickson. We sold what we could of them. 

Mr. Bourne. How much loss did you suffer because of the fact 
that you could not sell them? 

Mr. Dickson. I do not know. 

Mr. Bourne. Can you a{)i)roxiniate? 

Mr. DiCKso.N. No, I do not thiidv I can. 

Mr. KiTCiiiN. What per cent on the dollar did you got for them 
when you did sell them? 

Mr. Dickson. They were not all there; we luid sold what goods we 
could. We moved the goods out there just the same as though we 
were going to stay there forever. We sold what we coidd, and I 
remember one item of shoes particularly. We had a very big bill of 
shoes: I think it was $1,200. It was a bitr item, because that is a 



RELIEF OF H. M. DICKSON ET AL. 55 

rough coiintr}' aiul they wear out shoes very fast antl it was simply 
impossible for us to dispose of those in the short operation we had 
there, and we made a o;eneral clean-up of them when we got through 
and took them to Black Mountain and I sold the whole bunch for less 
than $100. I do not know whether it was 10 cents on the dollar or 5 
cents on the dollar. 

Mr. Fulton. What do you think that quantity of shoes, which you 
sold for less than $100, was worth, if there had been a market for 
them ? 

Mr. Dickson. I think it would be a very conservative statement to 
say that w^e did not loose less than $1,500 on our stock of goods and 
commissary. 

Mr. KiTCHiN. Have you included that in your items? 
Mr. Dickson. No, sir. 

Mr. Fulton. I think that is a good measure of damages. 
^Ir. Dickson. That was certainly a loss. We did not include 
that in the statement at all. 

Mr. Kitchin. You might say that there were incidental damages 
that you did not put in. 

Mr. Dickson. Dozens of them. 

Mr. Bourne. This was really dhect damage. These gentlemen 
made the itemized statement up as best they could from then- papers 
and from then- books, and they could not think of all the items. 

]Mi-. Kitchin. In vour examination this morning you said that 
you made up that 1,500,000 or 2,000,000 feet fi'om your log book; 
where is that log book? 

l^li. Dickson. I do not know whether it is in Asheville or not. It 
was a book about that long [indicating], a white book. I had it in 
my desk at Black Mountain, and saw it once there in my desk. 
Mr. Kitchin. Have you ever looked for the book to bring it here? 
Mr. Dickson. No, I have not. 
Ml'. Bourne. Bv whom was that book kept? 
Mr. Dickson. By W. S. H} att. 

■Mr. Bourne. Is he the gentleman who has submitted an afhdavit 
here? 

Mr. Dickson. He is the man who submitted an afhdavit. 
Mr. Bourne. And the affidavit relates to this very point? 
Mr. Dickson. Yes; and no one made a figure in that book but Mr. 
Hyatt. We simply took the book at the close of the month and 
footed it up for this purpose — not that we knew anything was coming, 
but for the reason that we were anticipating getting our tiinber cut 
at 50 cents a thousand feet, the cutting it down and putting it in logs. 
I do not mean movint^ it to the yard, but I mean the felling of the 
trees and putting the timber in logs was estimated at 50 cents a thou- 
sand feet, we were told if we could contract it; but the trouble in 
doing that was that the cutters would not cut to our advantage. 
You see, we had a long haul to the railroad and we wanted nothing 
but good logs and good timber; we could not afford to haul the poor 
stuff; and we figured that if we allowed our logi2;ers to go in and cut it 
into logs and bring it in that they would l)ring in stufi" that we did not 
want and lengths of logs we did not want; so we put this force of 
men in there to cut our own timber, which all practical lum])ermen will 
tell you is a profitable thing to do, and we wanted to see that we were 
cutting it within the bounds of 50 cents a thousand feet. We kept 



56 BELIEF or H. M. DICKSOX ET AL. 

the log book to determine whether we were paying too much or too 
little, and it finalh^ developed that we were paying too much. Hav- 
ing established this point as to cost of cutting logs the book was of 
no further use to us and we were not interested in preserving it. 

Mr. Bourne. I would like to do this: I would like to know if it 
would not be proper for me here to say that the claimants recpiest 
the Committee on Claims, including the subcommittee, of course, if 
they find from the evidence or the testimony that has been sub- 
mitted, that there are any elements of damages not covered in the 
itemized statement attached to the memorial, that they be consid- 
ered, notwithstanding the fact that they are not included in said 
statement. 

Mr. KiTCHix. Anything that is in the testimony would be included. 

Mr. Bourne. I would like to make that statement for the reason 
that you gentlemen can understand that nobody knows, in a claim 
of this sort, just exactly what the committee is going to take as the 
measure of damages, and it was impossible until these gentlemen 
got under cross-examination for them to recall every element of 
damage. You can understand how difficult that is. This statement 
was prepared in 1903, and that was five years after the confirmation 
of the contract by the Interior Department. We put Mr. Dickson 
on the stand because he had charge of this particular operation do^\Ti 
there on Soco at that time. 

STATEMENT OF MR. W. T. MASON. 

Mr. KiTCHix. Mr. Mason, have you anything to state to the 
committee? 

Mr. Masox. Mr. Dickson said that we had forty-six thousand and 
some odd dollars invested, but that $46,000 included the cost of the 
timber, leaving twenty-one thousand and something as money that 
had been actually put into the plant. 

Mr. KiTCHix. In excess of the purchase price of the timber? 

Mr. Mason. Yes. There is no interest computed on that at all, 
but the interest was computed on the value of the timber only. 

Mr. Bourne. Mr. Mason, did you -hear Mr. Dickson testify in this 
matter? 

Mr. Mason. Yes, sir. 

Mr. Bourne. Do you know whether his testimony was substan- 
tially true or not? 

Mr. Mason. Yes, sir; it is. 

Mr. Bourne. Is there any correction that you desire to make to 
any part of it? 

Mr. Mason. No, sir. 

Mr. Bourne. I will ask you if you did not verify this memorial and 
the items in the statements of damages attached to it? 

Mr. Mason. Yes, sir. 

(Thereupon, at 4 o'clock p. m., the subcommittee adjourned.) 

(Tiie contract between H. M. Dickson and W. T. Mason and J. N. 
Capps, and the memorial to the Congress are annexed hereto, marked, 
respectively, ''Exhibit A" and "Exhibit B.") 



RELIEF OP H. M. DICKSON ET AL. 57 

Exhibit B. 

AsHEViLLE, N. C, June 10, 1897. 

This indenture witnesseth a full and final settlement between H. M. Dickson, 
\V. T. Mason, and The Dickson-Mason Lninl)er Company, of Asheville, N. C, parties 
of the fii-st part and J. X. Capps, of Effingham, 111., party of the second part, as to all 
damages sustained liy him in consequence of a certain injunction and suit in equity 
by the United States Government against said parties of tlie first part, in consequence 
of which default was made on a contract for sawing which the said party of the second 
part had made with parties of the first part; tlie closing up and abrogating of all agree- 
ments heretofore made by said parties of the first part with party of the second part; 
as to sawing lumber on the lands on the Cathcart tract in Jackson County, N. C, being 
the lands to which the said The Dickson-Mason Luml)er Company has the timber 
right; the amount due and unpaid the said The Dickson-Mason Lumber Company 
upon a contract to purchase a mill now owned by the said company and now located 
on above described land, by party of the second part, together with the method of 
payment of the l)alance due the said The Dickson-Mason Lumber Company from the 
said J. N. Capps: and further sets forth the contract as to sawing in the future, and all 
agreements connected therewith. 

First. Whereas the parties of the first part entered into a contract with the said party 
of the second part to saw a certain amount of lumber on their lands in Jackson County, 
N. C., under certain conditions, and whereas on account of the al)ove described injunc- 
tion and the suit in equity they were prevented from carrying out the above contract, 
and "whereas in consequence thereof said party of the second part was damaged, it is 
agreed and settled that the damages amount to fourteen hundred and ninety-one 
dollars ($1,491), being loss on nicahinery, loss of time and loss of interest on invest- 
ment, and it is therefore agreed that this amount is to be credited to the said J. N. 
Capps as part payment upon the contract to purchase mill above described, and the 
said The Dickson-Mason Lumber Company is hereby released from all claims, of 
whatsoever nature, growing out of the above described default, and receipt is hereby 
acknowledged l)y the said J. N. Capps for the amount of the said credit, and it is hereby 
agreed that all agreements made or existing under the above described contract, for 
sawing, are null and void. 

Second. Whereas in pursuance of the former operations, under the above described 
contract, the said The Dickson-Mason Lumber Company ])urchased a certain sawmill 
of the Smith, Meyer & Schnier pattern and brought it onto the above desciibed lands, 
where it is now located, and whereas they made a contract with the said J. X. Capps to 
sell him this above described mill under the following conditions, to wit: 

That the said J. N. Capps was to have possession of the mill for the purpose of sawdng 
ami was to saw for the said The Dickson-Mason Lumber Company and receive therefor 
two dollars and fifty cents ($2.50) per thousand feet measured lumber: one dollar and 
fifty cents (.51.50) iii cash or its equivalent and one dollar to be retained by the said 
company in payment on said contract until such time as the one dollar (SI) per thou- 
sand retained shall amount to the purchase price of the mill, the purchase pnce being 
two thou.-^and nine hundred and thirty-eight dollars and seven cents ($2,938.07), and 
whereas the a1)0ve-described damage amounting to fourteen hundred and ninety-one 
dollars ($1,491) has been placed to Mr. Capps' credit, it leaves a balance of fourteen 
hundred and forty-seven dollars ($1 .447.07), which is to l)e paid in sawing, by the reten- 
tion of one dollar (.*!) per thousand feet out of saw bill, until the sum is paid, when the 
title of the mill shall pass from the said The Dickson-Mason Lumber Company to the 
said J. X. Capps, and they shall make him a release for all claims on account of purchase 
money. 

Thii'd. And whereas it is desired by the parties to this paper that sawing shall con- 
tinue, it is hereljy agreed that it shall be done upon the following conditions, to wit: 

(A) The said J. X. Capps is to saw and deliver, at the tail of the mill, all logs deliv- 
ered by the said The Dickson-Mason Lumber Company into the inill yard, at the 
present site, (as convenient to tlie mill as ])ractical)le) at two dollars antl fifty cents 
(.$2.50) per thousand feet luml)er measure: the lumber to be measured at the tail of 
the mill honestly and fairly, each party to bt-ar oiie-lialf of the expense of said meas- 
uring. The above described payment of two dollars and fifty cents ($2.50) per thou- 
sand feet to be paid, one dollar and fifty cents ($1.50) in cash monthly and one dollar 
($1) by the above described retention for the payment of the balance due on the present 
purchase price of the mill as above described. 

(B) It is agreed that the luml)er shall be sawed in such a way as the said The Dick- 
son-Mason Lumber Con\pany m;iy direct, in an economical and workmanlike manner, 
to be trimmed and edged to get tlu- liighesl grades pniclical)l(' from the logs. 

(C) Aii uoards n(.)t suitable for merchantable lumber, made in straightening logs in 
sawing, and all short pieces from trimmer, and such pieces of the edgings as may be 



58 RELIEF OF H. M. DICKSON ET Al.. 

cut off by the cut-off saw, which shall be of use to the said The Dickson-Mason Lumber 
Company, but which would otherwise go into the slab pile, shall be taken and taken 
care of by the said The Dickson-Mason Lumber Company without charge for sawing, 
the said J. N. Capps being at no expense for said care in any way whatever. 

(D) It is agreed that no pay for sawing is to he made for missawed stock of mer- 
chantable lumber above 2 per cent thereof. 

(E) A complete tally of lumber sawed shall be delivered to the said J. N. Capps at 
least once a week. 

(F) The said J. N. Capps is to have the preference in sawing such yards of logs as 
the said The Dickson-Mason Lumber Company may elect to make at other places, 
than the present site, on the waters of Soco Creek, within the Cathcart tract of land 
in Jackson County, N. C, on the same conditions above stated; and in case the said 
J. N. Capps does not choose, or does not saw such yards when offered by the said The 
Dickson-Mason Lumber Company, he shall have the right of refusal, and the said The 
Dickson-Mason Lumber Company shall have the privilege of getting the yards sawed 
out by other parties. 

In witness whereof we have hereunto set our hands and seals this day and date 
above written. 

The Dickson-Mason Lumber Company, [seal.] 
Per W. T. Mason, Secretary and Treasurer. 

J. N. Capps. [seal.] 

Witness: 

P. V. Shoe. 

State of North Carolina, 

Buncombe County: 
I, J. L. Cathy, clerk of the superior court, do hereby certify that the execution of 
the annexed instrument was this day proven before me, by the oath and examination 
of P. V. Shoe, the subscribing witness thereto. 

Therefore let the same, with this certificate, be registered. 

Witness my hand and official seal, this 3d day of December, A. D. 1897. 

J. L. Cathy, 
Clerk Superior Court. 

North Carolina, 

Buncombe County: 
Before me, Haywood Parker, a notary public in and for Buncombe County, N. C, 
came P. V. Shoe, the subscribing witness to the foregoing instrument, to me person- 
ally known, who, being by me first duly sworn, doth duly prove the execution thereof, 
for the pvu'poses therein expressed. 

In witness whereof I have hereunto signed my name and affixed my notarial seal 
this the 10th day of September, 1897. 

[seal.] Haywood Parker, 

Notary Public in aiuljor Buncombe County, N. C. 
North Carolina, 

Jackson County: 
The foregoing certificate, Haywood Parker, notary public in and for the county 
of Buncombe and State of North Carolina, with his notarial seal attaclied, having 
been exhibited before me, is adjudged to be correct and sufficient. Therefore let 
the instrument with the certificates be registered. 
Witness my hand and seal this September 11, 1897. 

If. C. Cowan, 
Clerk Superior Court, Jackson County. N. C. 
The within instrument was this, the 11th day of September, 1897, duly registered 
in Book V, Record of Deeds for Jackson County, N. C. on pages 550 to 553, inclusive. 

John R. Lono, 
RcgiMcr of Deeds. 

Registered December 3, 1897, at 3.35 o'clock i^ ni., in Uook of Deeds No. 103, at 
pages 413 et seq., of Buncombe County Records. 

W. J. liEACHBOARP, 

Register of Deeds of Buncombe County, N. C. 

o 



EJa'09 



